CONTENTS

CHAPTER I
THE SCIENCE OF JURISPRUDENCE
PAGE
§ 1. Jurisprudence as the Science of Law [1]
§ 2. Jurisprudence as the Science of Civil Law [3]
§ 3. Theoretical Jurisprudence [4]
§ 4. English and Foreign Jurisprudence [7]
CHAPTER II
CIVIL LAW
§ 5. The Definition of Law [9]
§ 6. The Administration of Justice [10]
§ 7. Law logically subsequent to the Administration of Justice [12]
§ 8. Law and Fact [15]
§ 9. The Justification of the Law [19]
§ 10. The Defects of the Law [23]
§ 11. General and Special Law [28]
§ 12. Common Law [32]
§ 13. Law and Equity [34]
CHAPTER III
OTHER KINDS OF LAW
§ 14. Law in General—A Rule of Action [40]
§ 15. Physical or Scientific Law [41]
§ 16. Natural or Moral Law [43]
§ 17. Imperative Law [47]
§ 18. Conventional Law [54]
§ 19. Customary Law [55]
§ 20. Practical Law [56]
§ 21. International Law [56]
§ 22. The Law of Nations as Natural Law [59]
§ 23. The Law of Nations as Customary Law [60]
§ 24. The Law of Nations as Imperative Law [61]
CHAPTER IV
THE ADMINISTRATION OF JUSTICE
§ 25. Necessity of the Administration of Justice [65]
§ 26. Origin of the Administration of Justice [67]
§ 27. Civil and Criminal Justice [70]
§ 28. The Purposes of Criminal Justice: Deterrent Punishment [75]
§ 29. Preventive Punishment [75]
§ 30. Reformative Punishment [76]
§ 31. Retributive Punishment [80]
§ 32. Civil Justice: Primary and Sanctioning Rights [84]
§ 33. A Table of Legal Remedies [87]
§ 34. Penal and Remedial Proceedings [88]
§ 35. Secondary Functions of Courts of Law [89]
CHAPTER V
THE STATE
§ 36. The Nature and Essential Functions of the State [93]
§ 37. Secondary Functions of the State [98]
§ 38. The Territory of the State [99]
§ 39. The Membership of the State [99]
§ 40. The Constitution of the State [105]
§ 41. The Government of the State [110]
§ 42. Independent and Dependent States [111]
§ 43. Unitary and Composite States [114]
CHAPTER VI
THE SOURCES OF LAW
§ 44. Formal and Material Sources [117]
§ 45. Legal and Historical Sources [117]
§ 46. A List of Legal Sources [120]
§ 47. The Sources of Law as Constitutive and Abrogative [123]
§ 48. Sources of Law and Sources of Rights [124]
§ 49. Ultimate Legal Principles [125]
CHAPTER VII
LEGISLATION
§ 50. The Nature of Legislation [127]
§ 51. Supreme and Subordinate Legislation [129]
§ 52. Relation of Legislation to other Sources [132]
§ 53. Codification [136]
§ 54. The Interpretation of Enacted Law [137]
CHAPTER VIII
CUSTOM
§ 55. The Early Importance of Customary Law [143]
§ 56. Reasons for the Reception of Customary Law [144]
§ 57. The Requisites of a Valid Custom [146]
§ 58. Conventional Custom [153]
§ 59. Theories of Customary Law [154]
§ 60. Custom and Prescription [157]
CHAPTER IX
PRECEDENT
§ 61. The Authority of Precedents [159]
§ 62. Declaratory and Original Precedents [160]
§ 63. Authoritative and Persuasive Precedents [163]
§ 64. The Absolute and Conditional Authority of Precedents [164]
§ 65. The Disregard of a Precedent [165]
§ 66. Precedents Constitutive, not Abrogative [168]
§ 67. Grounds of the Authority of Precedents [170]
§ 68. The Sources of Judicial Principles [174]
§ 69. Respective Functions of Judges and Juries [176]
CHAPTER X
LEGAL RIGHTS
§ 70. Wrongs [179]
§ 71. Duties [180]
§ 72. Rights [181]
§ 73. The Elements of a Legal Right [185]
§ 74. Legal Rights in a wider sense of the term [190]
§ 75. Libertie [190]
§ 76. Powers [192]
§ 77. Duties, Disabilities, and Liabilities [194]
CHAPTER XI
THE KINDS OF LEGAL RIGHTS
§ 78. Perfect and Imperfect Rights [197]
§ 79. The Legal Nature of Rights against the State [199]
§ 80. Positive and Negative Rights [201]
§ 81. Real and Personal Rights [202]
§ 82. Proprietary and Personal Rights [207]
§ 83. Rights in re propria and Rights in re aliena [212]
§ 84. Principal and Accessory Rights [216]
§ 85. Legal and Equitable Rights [217]
CHAPTER XII
OWNERSHIP
§ 86. The Definition of Ownership [220]
§ 87. Corporeal and Incorporeal Ownership [221]
§ 88. Corporeal and Incorporeal Things [225]
§ 89. Sole Ownership and Co-ownership [226]
§ 90. Trust and Beneficial Ownership [227]
§ 91. Legal and Equitable Ownership [231]
§ 92. Vested and Contingent Ownership [232]
CHAPTER XIII
POSSESSION
§ 93. Introduction [236]
§ 94. Possession in Fact and in Law [237]
§ 95. Corporeal and Incorporeal Possession [239]
§ 96. Corporeal Possession [240]
§ 97. The Animus Possidendi [242]
§ 98. The Corpus of Possession [244]
§ 99. Relation of the Possessor to other Persons [244]
§ 100. Relation of the Possessor to the Thing Possessed [250]
CHAPTER XIV
POSSESSION (continued)
§ 101. Immediate and Mediate Possession [252]
§ 102. Concurrent Possession [256]
§ 103. The Acquisition of Possession [256]
§ 104. Possession not essentially the Physical Power of Exclusion [258]
§ 105. Incorporeal Possession [261]
§ 106. Relation between Possession and Ownership [264]
§ 107. Possessory Remedies [267]
CHAPTER XV
PERSONS
§ 108. The Nature of Personality [272]
§ 109. The Legal Status of the Lower Animals [273]
§ 110. The Legal Status of Dead Men [275]
§ 111. The Legal Status of Unborn Persons [277]
§ 112. Double Personality [278]
§ 113. Legal Persons [279]
§ 114. Corporations [281]
§ 115. The Agents, Beneficiaries, and Members of a Corporation [285]
§ 116. The Acts and Liabilities of a Corporation [287]
§ 117. The Uses and Purposes of Incorporation [289]
§ 118. The Creation and Extinction of Corporations [293]
§ 119. The State as a Corporation [294]
CHAPTER XVI
TITLES
§ 120. Vestitive Facts [299]
§ 121. Acts in the Law [301]
§ 122. Agreements [305]
§ 123. The Classes of Agreements [307]
§ 124. Void and Voidable Agreements [309]
CHAPTER XVII
LIABILITY
§ 125. The Nature and Kinds of Liability [319]
§ 126. The Theory of Remedial Liability [320]
§ 127. The Theory of Penal Liability [321]
§ 128. Acts [323]
§ 129. Two Classes of Wrongful Acts [327]
§ 130. Damnum sine Injuria [329]
§ 131. The Place and Time of an Act [330]
§ 132. Mens Rea [332]
CHAPTER XVIII
INTENTION AND NEGLIGENCE
§ 133. The Nature of Intention [335]
§ 134. Intention and Motive [338]
§ 135. Malice [340]
§ 136. Relevance and Irrelevance of Motives [341]
§ 137. Criminal Attempts [343]
§ 138. Other Exceptions to the Irrelevance of Motives [346]
§ 139. Jus necessitatis [347]
§ 140. Negligence [348]
§ 141. Objection Considered [352]
§ 142. The Standard of Care [354]
§ 143. Degrees of Negligence [358]
§ 144. Other Theories of Negligence [361]
CHAPTER XIX
LIABILITY (continued)
§ 145. Wrongs of Absolute Liability [366]
§ 146. Mistake of Law [368]
§ 147. Mistake of Fact [369]
§ 148. Accident [371]
§ 149. Vicarious Responsibility [374]
§ 150. The Measure of Criminal Liability [377]
§ 151. The Measure of Civil Liability [382]
CHAPTER XX
THE LAW OF PROPERTY
§ 152. Meanings of the term Property [385]
§ 153. Kinds of Property [387]
§ 154. The Ownership of Material Things [387]
§ 155. Movable and Immovable Property [390]
§ 156. Real and Personal Property [394]
§ 157. Rights in re propria in Immaterial Things [395]
§ 158. Leases [397]
§ 159. Servitudes [400]
§ 160. Securities [402]
§ 161. Modes of Acquisition: Possession [406]
§ 162. Prescription [408]
§ 163. Agreement [412]
§ 164. Inheritance [416]
CHAPTER XXI
THE LAW OF OBLIGATIONS
§ 165. The Nature of Obligations [422]
§ 166. Solidary Obligations [424]
§ 167. The Sources of Obligations [427]
§ 168. Obligations arising from Contracts [427]
§ 169. Obligations arising from Torts [428]
§ 170. Obligations arising from Quasi-Contracts [432]
§ 171. Innominate Obligations [435]
CHAPTER XXII
THE LAW OF PROCEDURE
§ 172. Substantive Law and the Law of Procedure [437]
§ 173. Evidence [440]
§ 174. The Valuation of Evidence [444]
§ 175. The Production of Evidence [449]
§ 176. Criticism of the Law of Evidence [452]
APPENDICES
I. The Names of the Law [457]
II. The Theory of Sovereignty [467]
III. The Maxims of the Law [474]
IV. The Divisions of the Law [481]
V. The Literature of Jurisprudence [487]
INDEX [497]

JURISPRUDENCE.

CHAPTER I.
THE SCIENCE OF JURISPRUDENCE.

§ 1. Jurisprudence as the Science of Law.

In the widest of its applications the term jurisprudence means the science of law, using the word law in that vague and general sense in which it includes all species of obligatory rules of human action. Of jurisprudence in this sense, there are as many divisions as there are kinds of law which have been deemed sufficiently important and well developed to serve as the subject-matter of distinct branches of learning. They are at least three in number:

1. Civil Jurisprudence.—This is the science of civil law, that is to say, the law of the land. Its purpose is to give a complete and systematic account of that complex body of principles which is received and administered in the tribunals of the state.

2. International Jurisprudence.—This is the science of international law or the law of nations. It is concerned not with the rules which are in force within states, but with those which prevail between states. Just as the conduct of the subjects of a single state is governed by the civil law, so international law regulates the conduct of states themselves in their relations towards each other.

3. Natural Jurisprudence.—This is the science of that which our forefathers termed natural law or the law of nature (jus naturale). By this they meant the principles of natural justice—justice as it is in itself, in deed and in truth, as contrasted with those more or less imperfect and distorted images of it which may be seen in civil and international law. Whether these principles of natural justice are rightly entitled to the name of law—whether natural law, so called, can be rightly classed along with civil and international law as a species of the same genus—is a question which it is not needful for us here to discuss. It is sufficient for our present purpose to note the historical fact, that there is a very extensive literature in which the law of nature is given a place side by side with civil law and the law of nations (jus naturale, jus civile, and jus gentium), and in which the resulting threefold division of jurisprudence into natural, civil, and international, is recognised as valid.

Books of natural jurisprudence are in their essence books of ethics or moral philosophy, limited, however, to that department which is concerned with justice, as opposed to the other forms of right, while the method and the point of view are those of the lawyer rather than of the moral philosopher. Experience has shown, however, that this abstract theory of justice in itself, this attempt to work out in abstracto the principles of natural right, is a sufficiently unprofitable form of literature. In England both name and thing have become in recent years all but obsolete. Yet there are not wanting even at this day examples of the earlier way of thought. The most notable of these is the late Professor Lorimer’s Institutes of Law, a Treatise of the Principles of Jurisprudence as determined by Nature. On the Continent, on the other hand, the literature of natural law, though no longer as flourishing as it was, is still of importance. One of the best known works of this class is Ahrens’ Cours de Droit Naturel. A typical example from an earlier epoch is Pufendorf’s once celebrated but now neglected work, De Jure Naturae et Gentium (1672).[[1]]

§ 2. Jurisprudence as the Science of Civil Law.

In a second and narrower sense, jurisprudence, instead of including all three of the foregoing divisions, is limited to one only, namely, that which we have distinguished as civil. It is the science of civil law. A similar specific application belongs to the term law also, for when we speak of law without any qualifying epithet, we commonly mean that particular form which is administered in the tribunals of the state. So when we speak of jurisprudence without more, we usually intend the science of this special kind of law and this alone.[[2]]

Civil jurisprudence is divisible into three branches, which may be distinguished as Systematic, Historical, and Critical. The first deals with the present; its purpose is the exposition of the legal system as it now is. The second deals with the past; it is concerned with the legal system in the process of its historical development. The third deals with the ideal future; it expounds the law not as it is or has been, but as it ought to be. Systematic jurisprudence is legal exposition; historical jurisprudence is legal history; while critical jurisprudence is commonly known as the science of legislation.

§ 3. Theoretical Jurisprudence.

There is yet a third and still narrower sense, in which jurisprudence includes not the whole science of civil law, but only a particular part of it. In this limited signification it may be termed abstract, theoretical, or general, to distinguish it from the more concrete, practical, and special departments of legal study. It is with this form only that we are concerned in the present treatise. How, then, shall we define it, and how distinguish it from the residue of the science of the civil law? It is the science of the first principles of the civil law. It is not possible, indeed, to draw any hard line of logical division between these first principles and the remaining portions of the legal system. The distinction is one of degree rather than of kind. Nevertheless it is expedient to set apart, as the subject-matter of a special department of study, those more fundamental conceptions and principles which serve as the basis of the concrete details of the law. This introductory and general portion of legal science, cut off for reasons of practical convenience from the special portions which come after it, constitutes the subject-matter of our inquiry. It comprises the first principles of civil jurisprudence in all its three divisions, systematic, historical, and critical. The fact that its boundaries are not capable of being traced with logical precision detracts in no degree from the advantages to be derived from its recognition and separate treatment as a distinct department of juridical science. Practical legal exposition acknowledges no call to rise to first principles, or to proceed to ultimate analysis. From the point of view of law as an art, the importance of conceptions and principles varies inversely with their abstractness or generality. Practical jurisprudence proceeds from below upward, and ascends no further than the requirements of use and practice demand. Theoretical jurisprudence, on the contrary, attributes value to the abstract and the general, rather than to the concrete and the particular. Even when these two departments of knowledge are coincident in their subject-matter, they are far apart in their standpoints, methods, and purposes. The aim of the abstract study is to supply that theoretical foundation which the science of law demands, but of which the art of law is careless.

Opinions may well differ to some extent as to the matters which are fit, by reason of their generality or their theoretic and scientific interest, to find a place among the contents of abstract jurisprudence. Speaking generally, however, it may be said that this science appropriately deals with such matters as the following:

1. An analysis of the conception of civil law itself, together with an examination of the relations between this and other forms of law.

2. An analysis of the various subordinate and constituent ideas of which the complex idea of the law is made up; for example, those of the state, of sovereignty, and of the administration of justice.

3. An account of the sources from which the law proceeds, with an investigation into the theory of legislation, precedent, and customary law.

4. An examination of the general principles of legal development, as contrasted with the historic details of the growth of the individual legal system, this last pertaining to legal history.

5. An inquiry into the scientific arrangement of the law, that is to say, the logical division of the corpus juris into distinct departments, together with an analysis of the distinctions on which the division is based.

6. An analysis of the conception of legal rights together with the division of rights into various classes, and the general theory of the creation, transfer, and extinction of rights.

7. An investigation of the theory of legal liability, civil and criminal.

8. An examination of any other juridical conceptions which by reason of their fundamental character, or their theoretical interest, significance, or difficulty, deserve special attention from the abstract point of view; for example, property, possession, obligations, trusts, incorporation, and many others.[[3]]

It may avoid misconceptions, and assist us in understanding what theoretical jurisprudence is, if we state shortly what it is not.

1. In the first place it is not an elementary outline of the concrete legal system. It deals not with the outlines of the law, but with its ultimate conceptions. It is concerned not with the simplest and easiest, but with some of the most abstruse and difficult portions of the legal system. Theoretical jurisprudence is not elementary law, any more than metaphysics is elementary science.

2. In the second place it is not, as the name general jurisprudence suggests, and as some writers have held,[[4]] the science of those conceptions and principles which all or most systems of law have in common. It is true, indeed, that a great part of the matter with which it is concerned is to be found in all mature legal systems. All these have the same essential nature and purposes, and therefore agree to a large extent in their fundamental principles. But it is not because of this universal reception, that such principles pertain to theoretical jurisprudence. Were it a rule of every country in the world that a man could not marry his deceased wife’s sister, the rule would not for that reason be entitled to a place in this department of legal science. Conversely, as universal reception is not sufficient, so neither is it necessary. Even if no system in the world, save that of England, recognised the legislative efficacy of precedent, the theory of case-law would none the less be a fit and proper subject of the science in question.

3. Finally, this branch of knowledge has no exclusive claim to the name of jurisprudence or of legal science. It is not, as some say, the science of law, but is simply the introductory portion of it. As we have already seen, it is not even capable of definite and logical separation from the residue of legal learning. The division is one suggested by considerations of practical convenience, not demanded by the requirements of logic.

The divisions of legal science, as they have been stated and explained in the foregoing pages, may be exhibited in tabular form as follows:

Jurisprudence, or the Science of Law in General. Civil Theoretical. The Theory of Civil Law—The Science of the First Principles of Civil Law.
Practical Systematic—Legal Exposition.
Historical—Legal History.
Critical—The Science of Legislation.
International. The Science of the Law of Nations.
Natural. The Science of Natural Law and Justice.

§ 4. English and Foreign Jurisprudence.

The use of the term jurisprudence to indicate exclusively that special branch of knowledge which we have termed theoretical jurisprudence, is a peculiarity of English nomenclature. In foreign literature jurisprudence and its synonyms include the whole of legal science and are never used in this specific and limited signification. The foreign works which correspond most accurately to the English literature of this subject are of three different kinds:—

1. Works devoted to the subject known as Juridical Encyclopædia, one of the best known examples of which is that of Arndts. He defines this department of legal science as comprising “a scientific and systematic outline or general view of the whole province of jurisprudence (Rechtswissenschaft), together with the general data of that science.” “Its purpose,” he adds, “is to determine the compass and limits of jurisprudence, its relations to other sciences, its internal divisions, and the mutual relations of its constituent parts.”[[5]]

2. Books of Pandektenrecht (that is to say, Modern Roman Law), and more especially the Introductory or General Part of these works. German jurists have devoted extraordinary energy and acumen to the analysis and exposition of the law of the Pandects, in that modern form in which it was received in Germany until superseded by recent legislation. Much of the work so done bears too special a reference to the details of the Roman system to be in point with respect to the theory of English law. The more general portions, however, are admirable examples of the scientific analysis of fundamental legal conceptions. Special mention may be made of the unfinished System of Modern Roman Law by Savigny, and of the similar works of Windscheid and Dernburg.

3. A third form of foreign literature which corresponds in part to our English books of jurisprudence, consists of those works of jurisprudentia naturalis which have been already referred to. These contain the theory of natural law and natural justice, while English jurisprudence is concerned with civil law, and with the civil or legal justice which that law embodies. Yet the relation between natural and civil law, natural and civil justice, is so intimate that the theory of the one is implicitly, if not explicitly, that of the other also. Widely, therefore, as they differ in aspect, we may place the French Philosophie du droit naturel and the German Naturrechtswissenschaft side by side with our own theoretical jurisprudence. It is, indeed, from the earlier literature of natural law, as represented by Pufendorf, Burlamaqui, Heineccius, and others,[[6]] that the modern English literature of jurisprudence is directly descended.[[7]]

CHAPTER II.
CIVIL LAW.

§ 5. The Definition of Law.

The law is the body of principles recognised and applied by the state in the administration of justice. Or, more shortly: The law consists of the rules recognised and acted on in courts of justice.

It will be noticed that this is a definition, not of a law, but of the law, and our first concern is to examine the significance of this distinction. The term law is used in two senses, which may be conveniently distinguished as the abstract and the concrete. In its abstract application we speak of the law of England, the law of libel, criminal law, and so forth. Similarly we use the phrases law and order, law and justice, courts of law. It is to this usage that our definition is applicable. In its concrete sense, on the other hand, we say that Parliament has enacted or repealed a law. We speak of the by-laws of a railway company or municipal council. We hear of the corn laws or the navigation laws. The distinction demands attention for this reason, that the concrete term is not co-extensive with the abstract in its application. Law or the law does not consist of the total number of laws in force. The constituent elements of which the law is made up are not laws but rules of law or legal principles. That a will requires two witnesses is not rightly spoken of as a law of England; it is a rule of English law. A law means a statute, enactment, ordinance, decree, or any other exercise of legislative authority. It is one of the sources of law in the abstract sense. A law produces statute law, just as custom produces customary law, or as a precedent produces case-law.

This ambiguity is a peculiarity of English speech. All the chief Continental languages possess distinct expressions for the two meanings. Law in the concrete is lex, loi, gesetz, legge. Law in the abstract is jus, droit, recht, diritto. It is not the case, indeed, that the distinction between these two sets of terms is always rigidly maintained, for we occasionally find the concrete word used in the abstract sense. Medieval Latin, for example, constantly uses lex as equivalent to jus, and the same usage is not uncommon in the case of the French loi. The fact remains, however, that the Continental languages possess, and in general make use of, a method of avoiding the ambiguity inherent in the single English term.

Most English writers have, in defining law, defined it in the concrete, instead of in the abstract sense. They have attempted to answer the question: “What is a law?” while the true inquiry is: “What is law?” The central idea of juridical theory is not lex but jus, not gesetz but recht. To this inverted and unnatural method of procedure there are two objections. In the first place it involves a useless and embarrassing conflict with legal usage. In the mouths of lawyers the concrete signification is quite unusual. They speak habitually of law, of the law, of rules of law, of legal principles, but rarely of a law or of the laws. When they have occasion to express the concrete idea, they avoid the vague generic expression, and speak of some particular species of law—a statute, Act of Parliament, by-law, or rule of Court. In the second place, this consideration of laws instead of law tends almost necessarily to the conclusion that statute law is the type of all law and the form to which all of it is reducible in the last analysis. It misleads inquirers by sending them to the legislature to discover the true nature and origin of law, instead of to the courts of justice. It is consequently responsible for much that is inadequate and untrue in the juridical theory of English writers.[[8]]

§ 6. The Administration of Justice.

We have defined law by reference to the administration of justice. It is needful, therefore, to obtain here some understanding of the essential nature of that function of the state, though a complete analysis of it must be deferred to a later period of our inquiry. That some form of compulsion and control is essential for the realization in human conduct of the idea of justice, experience has made sufficiently manifest. Unfortunately for the welfare of the world, men are not so constituted that to know the right is to do it. In the nature of things there is a conflict, partly real, partly only apparent, between the interests of man and man, and between those of individuals and those of society at large; and to leave every man free to do that which is right in his own eyes, would fill the world with fraud and violence. “We have seen,” says Spinoza, at the commencement of his Treatise on Politics,[[9]] “that the way pointed out by Reason herself is exceeding difficult, insomuch so that they who persuade themselves that a multitude of men ... can be induced to live by the rule of Reason alone, are dreamers of dreams and of the golden age of the poets.” If, therefore, we would maintain justice, it is necessary to add compulsion to instruction. It is not enough to point out the way; it is needful to compel men to walk in it. Hence the existence of various regulative or coercive systems, the purpose of which is the upholding and enforcement of right and justice by some instrument of external constraint. One of the most important of these systems is the administration of justice by the state. Another is the control exercised over men by the opinion of the society in which they live. A third is that scheme of coercion established within the society of states for the enforcement of the principles of international justice.

The administration of justice may therefore be defined as the maintenance of right within a political community by means of the physical force of the state.

The instrument of coercion employed by any regulative system is called a sanction, and any rule of right supported by such means is said to be sanctioned. Thus physical force, in the various methods of its application, is the sanction applied by the state in the administration of justice. Censure, ridicule, contempt, are the sanctions by which society (as opposed to the state) enforces the rules of morality. War is the last and the most formidable of the sanctions which in the society of nations maintain the law of nations. Threatenings of evils to flow here or hereafter from divine anger are the sanctions of religion, so far as religion assumes the form of a regulative or coercive system.[[10]]

A sanction is not necessarily a punishment or penalty. To punish wrongdoers is a very effectual way of maintaining the right, but it is not the only way. We enforce the rule of right, not only by imprisoning the thief, but by depriving him of his plunder, and restoring it to its true owner; and each of these applications of the physical force of the state is equally a sanction. The examination and classification of the different forms of sanction made use of by the state will claim our attention in a later chapter on the administration of justice.

§ 7. Law Logically Subsequent to the Administration of Justice.

We have defined law as the body of principles observed and acted on by the state in the administration of justice. To this definition the following objection may be made. It may be said: “In defining law by reference to the administration of justice, you have reversed the proper order of ideas, for law is the first in logical order, and the administration of justice second. The latter, therefore, must be defined by reference to the former, and not vice versa. Courts of justice are essentially courts of law, justice in this usage being merely another name for law. The administration of justice is essentially the enforcement of the law. The laws are the commands laid by the state upon its subjects, and the law courts are the organs through which these commands are enforced. Legislation, direct or indirect, must precede adjudication. Your definition of law is therefore inadequate, for it runs in a circle. It is not permissible to say that the law is the body of rules observed in the administration of justice, since this function of the state must itself be defined as the application and enforcement of the law.”

This objection is based on an erroneous conception of the essential nature of the administration of justice. The primary purpose of this function of the state is that which its name implies—to maintain right, to uphold justice, to protect rights, to redress wrongs. Law is secondary and unessential. It consists of the fixed principles in accordance with which this function is exercised. It consists of the pre-established and authoritative rules which judges apply in the administration of justice, to the exclusion of their own free will and discretion. For good and sufficient reasons the courts which administer justice are constrained to walk in predetermined paths. They are not at liberty to do that which seems right and just in their own eyes. They are bound hand and foot in the bonds of an authoritative creed which they must accept and act on without demur. This creed of the courts of justice constitutes the law, and so far as it extends, it excludes all right of private judgment. The law is the wisdom and justice of the organized commonwealth, formulated for the authoritative direction of those to whom the commonwealth has delegated its judicial functions. What a litigant obtains in the tribunals of a modern and civilized state is doubtless justice according to law, but it is essentially and primarily justice and not law. Judges are appointed, in the words of the judicial oath, “to do right to all manner of people, after the laws and usages of this realm.” Justice is the end, law is merely the instrument and the means; and the instrument must be defined by reference to its end.

It is essential to a clear understanding of this matter to remember that the administration of justice is perfectly possible without law at all. Howsoever expedient it may be, howsoever usual it may be, it is not necessary that the courts of the state should, in maintaining right and redressing wrong, act according to those fixed and predetermined principles which are called the law. A tribunal in which right is done to all manner of people in such fashion as commends itself to the unfettered discretion of the judge, in which equity and good conscience and natural justice are excluded by no rigid and artificial rules, in which the judge does that which he deems just in the particular case, regardless of general principles, may not be an efficient or trustworthy tribunal, but is a perfectly possible one. It is a court of justice, which is not also a court of law.

Moreover, even when a system of law exists, the extent of it may vary indefinitely. The degree in which the free discretion of a judge in doing right is excluded by predetermined rules of law, is capable of indefinite increase or diminution. The total exclusion of judicial discretion by legal principle is impossible in any system. However great is the encroachment of the law, there must remain some residuum of justice which is not according to law—some activities in respect of which the administration of justice cannot be defined or regarded as the enforcement of the law. Law is a gradual growth from small beginnings. The development of a legal system consists in the progressive substitution of rigid pre-established principles for individual judgment, and to a very large extent these principles grow up spontaneously within the tribunals themselves. That great aggregate of rules which constitutes a developed legal system is not a condition precedent of the administration of justice, but a product of it. Gradually from various sources—precedent, custom, statute—there is collected a body of fixed principles which the courts apply to the exclusion of their private judgment. The question at issue in the administration of justice more and more ceases to be, “What is the right and justice of this case?” and more and more assumes the alternative form, “What is the general principle already established and accepted, as applicable to such a case as this?” Justice becomes increasingly justice according to law, and courts of justice become increasingly courts of law.

§ 8. Law and Fact.

The existence of law is, as has been said, marked and measured by the exclusion, in courts of justice, of individual judgment by authority, of free discretion by rule, of liberty of opinion by pre-established determinations. The remarkable extent to which this exclusion is permitted is a very characteristic feature of the administration of justice; but it is not and cannot be complete. Judicial action is accordingly divisible into two provinces; one being that of law, and the other that of fact. All matters that come for consideration before courts of justice are either matters of law or matters of fact. The former are those falling within the sphere of pre-established and authoritative principle, while the latter are those pertaining to the province of unfettered judicial discretion. In other words, every question which requires an answer in a court of justice is either one of law or one of fact. The former is one to be answered in accordance with established principles—one which has been already authoritatively answered, explicitly or implicitly, by the law. A question of fact, on the other hand, is one which has not been thus predetermined—one on which authority is silent—one which the court may and must answer and determine in accordance with its own individual judgment.

It must be clearly understood that by a question of fact, as we have used the expression, is meant any question whatever except one of law, whether that question is, or is not, one of fact in the other senses of this equivocal term. We are not concerned, for example, with the distinction between matters of fact and matters of right, or with that between matters of fact and matters of opinion. Everything is fact for us which is not predetermined by legal principles. It is clear that this is the sense in which this term must inevitably be used, if the distinction between questions of fact and questions of law is to be exhaustive and logical.

The distinction may be illustrated by the following examples:—

Whether a contractor has been guilty of unreasonable delay in building a house is a question of fact; the law contains no rules for its determination. But whether the holder of a bill of exchange has been guilty of unreasonable delay in giving notice of dishonour, is a question of law to be determined in accordance with certain fixed principles laid down in the Bills of Exchange Act.

Whether verbal or written evidence of a contract is the better, is a question of law, the superiority of the latter being the subject of a pre-existing and authoritative generalisation. But whether the oral testimony of A. or that of B. is the better evidence, is a question of fact, left entirely to the untrammelled judgment of the court.

What is the proper and reasonable punishment for murder is a question of law, individual judicial opinion being absolutely excluded by a fixed rule. What is the proper and reasonable punishment for theft is (save so far as judicial discretion is limited by the statutory appointment of a maximum limit) a question of fact, on which the law has nothing to say.

The question whether a child accused of crime has sufficient mental capacity to be criminally responsible for his acts, is one of fact, if the accused is over the age of seven years, but one of law (to be answered in the negative) if he is under that age.

The point in issue is the meaning of a particular clause in an Act of Parliament. Whether this is a question of fact or of law, depends on whether the clause has already been the subject of authoritative judicial interpretation. If not, it is one of fact for the opinion of the court. If, however, there has already been a decision on the point, the question is one of law to be decided in accordance with the previous determination. The conclusion may seem paradoxical that a question of statutory interpretation may be one of fact, but a little consideration will show that the statement is correct. It is true, indeed, that the question is one as to what the law is, but a question of law does not mean one as to what the law is, but one to be determined in accordance with a rule of law.

A question is very often both one of fact and one of law, and is then said to be a mixed question of law and of fact. It is to be answered partly in accordance with fixed legal principles, and as to the residue in accordance with free judicial opinion. That is to say, it is not a simple, but a composite question, resolvable into a greater or less number of simple factors, some of which pertain to the sphere of the law and the others to that of fact. Let us take, for example, the question as to the proper term of imprisonment for a certain convicted criminal. This may, according to circumstances, be a pure question of fact, a pure question of law, or a mixed question of law and of fact. It belongs to the first of these classes, if the law contains no provision whatever on the matter, the court having in consequence a perfectly free hand. It belongs to the second class, if the matter is definitely predetermined by a fixed rule, appointing the exact length of imprisonment to be awarded. It belongs to the third class, if the law has fixed a minimum or maximum term, but has left the court with full liberty within the appointed limits. Similarly, whether the defendant has been guilty of fraud is a mixed question of law and of fact, because it is resolvable into two elements, one of law and the other of fact; what acts the defendant has done, and with what intent he did them, are pure questions of fact; but whether such acts, done with such an intent, amount to fraud is a pure question of law. So the question whether a partnership exists between A. and B. is partly one of fact (viz., what agreement has been made between these persons), and partly one of law (viz., whether such an agreement constitutes the relation of partnership). Similar composite questions are innumerable.

The distinction between matters of fact and matters of law is thrown into great prominence by the composite character of the typical English tribunal and the resulting division of functions between judge and jury. The general rule is that questions of law are for the judge and questions of fact for the jury. This rule is subject, however, to numerous and important exceptions. Though there are no cases in which the law is left to the jury, there are many questions of fact which are withdrawn from the cognisance of the jury and answered by the judge. The interpretation of a written document, for example, may be, and very often is, a pure matter of fact, and nevertheless falls within the province of the judge. So the question of reasonable and probable cause for prosecution—which arises in actions for malicious prosecution—is one of fact and yet one for the judge himself. So it is the duty of the judge to decide whether there is any sufficient evidence to justify a verdict for the plaintiff, and if he decides that there is not, the case is withdrawn from the jury altogether; yet in the majority of cases this is a mere matter of fact, undetermined by any authoritative principles.[[11]]

The validity of a legal principle is entirely independent of its truth. It is a valid principle of law, not because it is true, but because it is accepted and acted on by the tribunals of the state. The law is the theory of things, as received and acted on within the courts of justice, and this theory may or may not conform to the reality of things outside. The eye of the law does not infallibly see things as they are. Nor is this divergence of law from truth and fact necessarily, and in its full extent, inexpedient. The law, if it is to be an efficient and workable system, must needs be blind to many things, and the legal theory of things must be simpler than the reality. Partly by deliberate design, therefore, and partly by the errors and accidents of historical development, law and fact, legal theory and the truth of things, are far from complete coincidence. We have ever to distinguish that which exists in deed and in truth, from that which exists in law. Fraud in law, for example, may not be fraud in fact, and vice versa. That is to say, when the law lays down a principle determining, in any class of cases, what shall be deemed fraud, and what shall not, this principle may or may not be true, and so far as it is untrue, the truth of things is excluded by the legal theory of things. In like manner, that which is considered right or reasonable by the law may be far from possessing these qualities in truth and fact. Legal justice may conflict with natural justice; a legal wrong may not be also a moral wrong, nor a legal duty a moral duty.

§ 9. The Justification of the Law.

We have seen that the existence of law is not essential to the administration of justice. Howsoever expedient, it is not necessary that this function of the state should be exercised in accordance with those rigid principles which constitute a legal system. The primary purpose of the judicature is not to enforce law, but to maintain justice, and this latter purpose is in its nature separable from the former and independent of it. Even when justice is administered according to law, the proportion between the sphere of legal principle and that of judicial discretion is different in different systems, and varies from time to time. This being so, it is well to make inquiry into the uses and justification of the law—to consider the advantages and disadvantages of this substitution of fixed principles for the arbitrium judicis in the administration of justice—in order that we may be enabled to judge whether this substitution be good or evil, and if good within what limits it should be confined.

That it is on the whole expedient that courts of justice should become courts of law, no one can seriously doubt. Yet the elements of evil involved in the transformation are too obvious and serious ever to have escaped recognition. Laws are in theory, as Hooker says, “the voices of right reason”; they are in theory the utterances of Justice speaking to men by the mouth of the state; but too often in reality they fall far short of this ideal. Too often they “turn judgment to wormwood,” and make the administration of justice a reproach. Nor is this true merely of the earlier and ruder stages of legal development. At the present day our law has learnt, in a measure never before attained, to speak the language of sound reason and good sense; but it still retains in no slight degree the vices of its youth, nor is it to be expected that at any time we shall altogether escape from the perennial conflict between law and justice. It is needful, therefore, that the law should plead and prove the ground and justification of its existence.

The chief uses of the law are three in number. The first of these is that it imparts uniformity and certainty to the administration of justice. It is vitally important not only that judicial decisions should be correct, distinguishing accurately between right and wrong, and appointing fitting remedies for injustice, but also that the subjects of the state should be able to know beforehand the decision to which on any matter the courts of justice will come. This prevision is impossible unless the course of justice is uniform, and the only effectual method of procuring uniformity is the observance of those fixed principles which constitute the law. It would be well, were it possible, for the tribunals of the state to recognise and enforce the rules of absolute justice; but it is better to have defective rules than to have none at all. For we expect from the coercive action of the state not merely the maintenance of abstract justice, but the establishment within the body politic of some measure of system, order, and harmony, in the actions and relations of its members. It is often more important that a rule should be definite, certain, known, and permanent, than that it should be ideally just. Sometimes, indeed, the element of order and certainty is the only one which requires consideration, it being entirely indifferent what the rule is, so long as it exists and is adhered to. The rule of the road is the best and most familiar example of this, but there are many other instances in which justice seems dumb, and yet it is needful that a definite rule of some sort should be adopted and maintained.

For this reason we require in great part to exclude judicial discretion by a body of inflexible law. For this reason it is, that in no civilised community do the judges and magistrates to whom is entrusted the duty of maintaining justice, exercise with a free hand the viri boni arbitrium. The more complex our civilisation becomes, the more needful is its regulation by law, and the less practicable the alternative method of judicial procedure. In simple and primitive communities it is doubtless possible, and may even be expedient, that rulers and magistrates should execute judgment in such manner as best commends itself to them. But in the civilisation to which we have now attained, any such attempt to substitute the deliverances of natural reason for predetermined principles of law would lead to chaos. “Reason,” says Jeremy Taylor,[[12]] “is such a box of quicksilver that it abides no where; it dwells in no settled mansion; it is like a dove’s neck; ... and if we inquire after the law of nature” (that is to say, the principles of justice) “by the rules of our reason, we shall be as uncertain as the discourses of the people or the dreams of disturbed fancies.”

It is to be observed in the second place that the necessity of conforming to publicly declared principles protects the administration of justice from the disturbing influence of improper motives on the part of those entrusted with judicial functions. The law is necessarily impartial. It is made for no particular person, and for no individual case, and so admits of no respect of persons, and is deflected from the straight course by no irrelevant considerations peculiar to the special instance. Given a definite rule of law, a departure from it by a hair’s-breadth is visible to all men; but within the sphere of individual judgment the differences of honest opinion are so manifold and serious that dishonest opinion can pass in great part unchallenged and undetected. Where the duty of the judicature is to execute justice in accordance with fixed and known principles, the whole force of the public conscience can be brought to the enforcement of that duty and the maintenance of those principles. But when courts of justice are left to do that which is right in their own eyes, this control becomes to a great extent impossible, public opinion being left without that definite guidance which is essential to its force and influence. So much is this so, that the administration of justice according to law is rightly to be regarded as one of the first principles of political liberty. “The legislative or supreme authority,” says Locke,[[13]] “cannot assume to itself a power to rule by extemporary, arbitrary decrees, but is bound to dispense justice, and to decide the rights of the subject by promulgated, standing laws, and known, authorized judges.” So in the words of Cicero,[[14]] “We are the slaves of the law that we may be free.”

It is to its impartiality far more than to its wisdom (for this latter virtue it too often lacks) that are due the influence and reputation which the law has possessed at all times. Wise or foolish, it is the same for all, and to it, therefore, men have ever been willing to submit their quarrels, knowing, as Hooker[[15]] says, that “the law doth speak with all indifferency; that the law hath no side-respect to their persons.” Hence the authority of a judgment according to law. The reference of international disputes to arbitration, and the loyal submission of nations to awards so made, are possible only in proportion to the development and recognition of a definite body of international law. The authority of the arbitrators is naught; that of the law is already sufficient to maintain in great part the peace of the world. So in the case of the civil law, only so far as justice is transformed into law, and the love of justice into the spirit of law-abidingness, will the influence of the judicature rise to an efficient level, and the purposes of civil government be adequately fulfilled.

Finally, the law serves to protect the administration of justice from the errors of individual judgment. The establishment of the law is the substitution of the opinion and conscience of the community at large for those of the individuals to whom judicial functions are entrusted. The principles of justice are not always clearly legible by the light of nature. The problems offered for judicial solution are often dark and difficult, and there is great need of guidance from that experience and wisdom of the world at large, of which the law is the record. The law is not always wise, but on the whole and in the long run it is wiser than those who administer it. It expresses the will and reason of the body politic, and claims by that title to overrule the will and reason of judges and magistrates, no less than those of private men. “To seek to be wiser than the laws,” says Aristotle,[[16]] “is the very thing which is by good laws forbidden.”

§ 10. The Defects of the Law.

These then are the chief advantages to be derived from the exclusion of individual judgment by fixed principles of law. Nevertheless these benefits are not obtained save at a heavy cost. The law is without doubt a remedy for greater evils, yet it brings with it evils of its own. Some of them are inherent in its very nature, others are the outcome of tendencies which, however natural, are not beyond the reach of effective control.

The first defect of a legal system is its rigidity. A general principle of law is the product of a process of abstraction. It results from the elimination and disregard of the less material circumstances in the particular cases falling within its scope, and the concentration of attention upon the more essential elements which these cases have in common. We cannot be sure that in applying a rule so obtained, the elements so disregarded may not be material in the particular instance; and if they are so, and we make no allowance for them, the result is error and injustice. This possibility is fully recognised in departments of practice other than the law. The principles of political economy are obtained by the elimination of every motive save the desire for wealth; but we do not apply them blindfold to individual cases, without first taking account of the possibly disturbing influence of the eliminated elements. In law it is otherwise, for here a principle is not a mere guide to the due exercise of a rational discretion, but a substitute for it. It is to be applied without any allowance for special circumstances, and without turning to the right hand or to the left. The result of this inflexibility is that, however carefully and cunningly a legal rule may be framed, there will in all probability be some special instances in which it will work hardship and injustice, and prove a source of error instead of a guide to truth. So infinitely various are the affairs of men, that it is impossible to lay down general principles which will be true and just in every case. If we are to have general rules at all, we must be content to pay this price.

The time-honoured maxim, Summum jus est summa injuria, is an expression of the fact that few legal principles are so founded in truth that they can be pushed to their extremest logical conclusions without leading to injustice. The more general the principle, the greater is that elimination of immaterial elements of which it is the result, and the greater therefore is the chance that in its rigid application it may be found false. On the other hand, the more carefully the rule is qualified and limited, and the greater the number of exceptions and distinctions to which it is subject, the greater is the difficulty and uncertainty of its application. In attempting to escape from the evils which flow from the rigidity of the law, we incur those due to its complexity, and we do wisely if we discover the golden mean between the two extremes.

Analogous to the vice of rigidity is that of conservatism. The former is the failure of the law to conform itself to the requirements of special instances and unforeseen classes of cases. The latter is its failure to conform itself to those changes in circumstances and in men’s views of truth and justice, which are inevitably brought about by the lapse of time. In the absence of law, the administration of justice would automatically adapt itself to the circumstances and opinions of the time; but fettered by rules of law, courts of justice do the bidding, not of the present, but of the times past in which those rules were fashioned. That which is true to-day may become false to-morrow by change of circumstances, and that which is taken to-day for wisdom may to-morrow be recognised as folly by the advance of knowledge. This being so, some method is requisite whereby the law, which is by nature stationary, may be kept in harmony with the circumstances and opinions of the time. If the law is to be a living organism, and not a mere petrification, it is necessary to adopt and to use with vigilance some effective instrument of legal development, and the quality of any legal system will depend on the efficiency of the means so taken to secure it against a fatal conservatism. Legislation—the substitution of new principles for old by the express declaration of the state—is the instrument approved by all civilised and progressive races, none other having been found comparable to this in point of efficiency. Even this, however, is incapable of completely counteracting the evil of legal conservatism. However perfect we may make our legislative machinery, the law will lag behind public opinion, and public opinion behind the truth.

Another vice of the law is formalism. By this is meant the tendency to attribute undue importance to form as opposed to substance, and to exalt the immaterial to the level of the material. It is incumbent on a perfect legal system to exercise a sound judgment as to the relative importance of the matters which come within its cognisance; and a system is infected with formalism in so far as it fails to meet this requirement, and raises to the rank of the material and essential that which is in truth unessential and accidental. Whenever the importance of a thing in law is greater than its importance in fact, we have a legal formality. The formalism of ancient law is too notorious to require illustration, but we are scarcely yet in a position to boast ourselves as above reproach in this matter. Much legal reform is requisite if the maxim De minimis non curat lex is to be accounted anything but irony.

The last defect that we shall consider is undue and needless complexity. It is not possible, indeed, for any fully developed body of law to be such that he who runs may read it. Being, as it is, the reflection within courts of justice of the complex facts of civilised existence, a very considerable degree of elaboration is inevitable. Nevertheless the gigantic bulk and bewildering difficulties of our own labyrinthine system are far beyond anything that is called for by the necessities of the case. Partly through the methods of its historical development, and partly through the influence of that love of subtilty which has always been the besetting sin of the legal mind, our law is filled with needless distinctions, which add enormously to its bulk and nothing to its value, while they render great part of it unintelligible to any but the expert. This tendency to excessive subtilty and elaboration is one that specially affects a system which, like our own, has been largely developed by way of judicial decisions. It is not, however, an unavoidable defect, and the codes which have in modern times been enacted in European countries prove the possibility of reducing the law to a system of moderate size and intelligible simplicity.

From the foregoing considerations as to the advantages and disadvantages which are inherent in the administration of justice according to law, it becomes clear that we must guard against the excessive development of the legal system. If the benefits of law are great, the evils of too much law are not small. The growth of a legal system consists in the progressive encroachment of the sphere of law upon that of fact, the gradual exclusion of judicial discretion by predetermined legal principles. All systems do to some extent, and those which recognise precedent as a chief source of law do more especially, show a tendency to carry this process of development too far. Under the influence of the spirit of authority the growth of law goes on unchecked by any effective control, and in course of time the domain of legal principle comes to include much that would be better left to the arbitrium of courts of justice. At a certain stage of legal development, varying according to the particular subject-matter, the benefits of law begin to be outweighed by those elements of evil which are inherent in it.

Bacon has said, after Aristotle:[[17]] Optima est lex quae minimum relinquit arbitrio judicis. However true this may be in general, there are many departments of judicial practice to which no such principle is applicable. Much has been done in recent times to prune the law of morbid growths. In many departments judicial discretion has been freed from the bonds of legal principle. Forms of action have been abolished; rules of pleading have been relaxed; the credibility of witnesses has become a matter of fact, instead of as formerly one of law; a discretionary power of punishment has been substituted for the terrible legal uniformity which once disgraced the administration of criminal justice; and the future will see further reforms in the same direction.

We have hitherto taken it for granted that legal principles are necessarily inflexible—that they are essentially peremptory rules excluding judicial discretion so far as they extend—that they must of necessity be followed blindly by courts of justice even against their better judgment. There seems no reason, however, in the nature of things why the law should not, to a considerable extent, be flexible instead of rigid—should not aid, guide, and inform judicial discretion, instead of excluding it—should not be subject to such exceptions and qualifications as in special circumstances the courts of justice shall deem reasonable or requisite. There is no apparent reason why the law should say to the judicature: “Do this in all cases, whether you consider it reasonable or not,” instead of: “Do this except in those cases in which you consider that there are special reasons for doing otherwise.” Such flexible principles are not unknown even at the present day, and it seems probable that in the more perfect system of the future much law that is now rigid and peremptory will lapse into the category of the conditional. It will always, indeed, be found needful to maintain great part of it on the higher level, but we have not yet realised to what an extent flexible principles are sufficient to attain all the good purposes of the law, while avoiding much of its attendant evil. It is probable, for instance, that the great bulk of the law of evidence should be of this nature. These rules should for the most part guide judicial discretion, instead of excluding it. In the former capacity, being in general founded on experience and good sense, they would be valuable aids to the discovery of truth; in the latter, they are too often the instruments of error.

§ 11. General and Special Law.

The whole body of legal rules is divisible into two parts, which may be conveniently distinguished as General law and Special law. The former includes those legal rules of which the courts will take judicial notice, and which will therefore be applied as a matter of course in any case in which the appropriate subject-matter is present. Special law, on the other hand, consists of those rules which, although they are true rules of law, the courts will not recognise and apply as a matter of course, but which must be specially proved and brought to the notice of the courts by the parties interested in their recognition. In other words, the general law is that which is generally applicable; it is that which will be applied in all cases in which it is not specially excluded by proof that some other set of principles has a better claim to recognition in the particular instance. Special law, on the contrary, is that which has only a special or particular application, excluding and superseding the general law in those exceptional cases in which the courts are informed of its existence by evidence produced for that purpose.

The test of the distinction is judicial notice. By this is meant the knowledge which any court, ex officio, possesses and acts on, as contrasted with the knowledge which a court is bound to acquire through the appointed channel of evidence formally produced by the parties. A judge may know much in fact of which in law he is deemed ignorant, and of which, therefore, he must be informed by evidence legally produced. Conversely he may be ignorant in fact of much that by law he is entitled judicially to notice, and in such a case it is his right and duty to inform himself by such means as seem good to him. The general rule on the matter is that courts of justice know the law, but are ignorant of the facts. The former may and must be judicially noticed, while the latter must be proved. To each branch of this rule there are, however, important exceptions. There are certain exceptional classes of facts, of which, because of their notoriety, the law imputes a knowledge to the courts. Similarly there are certain classes of legal rules of which the courts may, and indeed must, hold themselves ignorant, until due proof of their existence has been produced before them. These, as we have said, constitute special, as opposed to the general law.

By far the larger and more important part of the legal system is general law. Judicial notice—recognition and application as a matter of course—is the ordinary rule. As to this branch of the law we need say nothing more in this place, but the rules of special law call for further consideration. They fall for the most part into five distinct classes. A full account of these must wait until we come to deal with the sources of law in a subsequent chapter, but in the meantime it is necessary to mention them as illustrating the distinction with which we are here concerned.

1. Local customs.—Immemorial custom in a particular locality has there the force of law. Within its own territorial limits it prevails over, and derogates from, the general law of the land. But the courts are judicially ignorant of its existence. If any litigant will take advantage of it, he must specially plead and prove it; otherwise the general law will be applied.

2. Mercantile customs.—The second kind of special law consists of that body of mercantile usage which is known as the law merchant. The general custom of merchants in the realm of England has in mercantile affairs the force of law. It may make, for example, an instrument negotiable, which by the general law of the land is not so. This customary law merchant is, like local customary law, special and not general; but, unlike local customary law, it has the capacity of being absorbed by, or taken up into the general law itself. When a mercantile usage has been sufficiently established by evidence and acknowledged as law by judicial decision, it is thereafter entitled to judicial notice. The process of proof need not be repeated from time to time.[[18]] The result of this doctrine is a progressive transformation of the rules of the special law merchant into rules of the general law. The law of bills of exchange, for example, was formerly part of the special law merchant, requiring to be pleaded and proved as a condition precedent to its recognition and application; but successive judicial decisions, based upon evidence of this special law, have progressively transmuted it into general law, entitled to judicial notice and to application as a matter of course.

3. Private legislation.—Statutes are of two kinds, distinguishable as public and private. The distinguishing characteristic of a public Act is that judicial notice is taken of its existence, and it is therefore one of the sources of the general law. A private Act, on the other hand, is one which, owing to its limited scope, does not fall within the ordinary cognisance of the courts of justice, and will not be applied by them unless specially called to their notice by the parties interested. Examples of private legislation are acts incorporating individual companies and laying down the principles on which they are to be administered, acts regulating the navigation of some river, or the construction and management of some harbour, or any other enactments concerned, not with the interests of the realm or the public at large, but with those of private individuals or particular localities.[[19]]

Private legislation is not limited to acts of Parliament. In most cases, though not in all, the delegated legislation of bodies subordinate to Parliament is private, and is therefore a source, not of general, but of special law. The by-laws of a railway company, for example, or of a borough council, are not entitled to judicial notice, and form no part of the general law of the land. Rules of court, on the other hand, established by the judges under statutory authority for the regulation of the procedure of the courts, are constituent parts of the ordinary law.

4. Foreign law.—The fourth kind of special law consists of those rules of foreign law, which upon occasion are applied even in English courts to the exclusion of English law. Experience has shown that justice cannot be efficiently administered by tribunals which refuse on all occasions to recognise any law but their own. It is essential in many cases to take account of some system of foreign law, and to measure the rights and liabilities of litigants by it, rather than by the indigenous or territorial law of the tribunal itself. If, for example, two men make a contract in France, which they intend to be governed by the law of France, and one of them sues on it in an English court, justice demands that the validity and effect of the contract shall be determined by French, rather than by English law. French, rather than English law will therefore be applied in such a case even by English judges. The principles which determine and regulate this exclusion of local by foreign law constitute the body of legal doctrine known as private international law.

Foreign law, so far as it is thus recognised in English courts, becomes, by virtue of this recognition, in a certain sense English law. French law is French as being applied in France, but English as being applied in England. Yet though it is then part of English law, as being administered in English courts, it is not part of the general law, for English courts have no official knowledge of any law save their own.

5. Conventional law.—The fifth and last form of special law is that which has its source in the agreement of those who are subject to it. Agreement is a juridical fact having two aspects, and capable of being looked at from two points of view. It is both a source of legal rights and a source of law. The former of these two aspects is the more familiar and in ordinary cases the more convenient, but in numerous instances the latter is profitable and instructive. The rules laid down in a contract, for the determination of the rights, duties, and liabilities of the parties, may rightly be regarded as rules of law which these parties have agreed to substitute for, or add to the rules of the general law. Agreement is a law for those who make it, which supersedes, supplements, or derogates from the ordinary law of the land. Modus et conventio vincunt legem. To a very large extent, though not completely, the general law is not peremptory and absolute, but consists of rules whose force is conditional on the absence of any other rules agreed upon by the parties interested. The articles of association of a company, for example, are just as much true rules of law, as are the provisions of the Companies Acts, or those statutory regulations which apply in the absence of any articles specially agreed upon. So articles of partnership fall within the definition of law, no less than the provisions of the Partnership Act which they are intended to supplement or modify, for both sets of rules are authoritative principles which the courts will apply in all litigation affecting the affairs of the partnership.

We have made the distinction between general and special law turn wholly upon the fact that judicial notice is taken of the former but not of the latter. It may be objected that this is a merely external and superficial view of the matter. General law, it may be argued, is so called because it is common to the whole realm and to all persons in it, while special law is that which has a special and limited application to particular places or classes of persons. In this contention there is an element of truth, but it falls short of a logical analysis of the distinction in question. It is true that the general law is usually wider in its application than special law. It is chiefly for this reason, indeed, that the former is, while the latter is not, deemed worthy of judicial notice. But we have here no logical basis for a division of the legal system into two parts. Much of the general law itself applies to particular classes of persons only. The law of solicitors, of auctioneers, or of pawnbrokers, is of very restricted application; yet it is just as truly part of the ordinary law of the land as is the law of theft, homicide, or libel, which applies to all mankind. The law of the royal prerogative is not special law, by reason of the fact that it applies only to a single individual; it is a constituent part of the general law. On the other hand, mercantile usage is dependent for its legal validity on its generality; it must be the custom of the realm, not that of any particular part of it; yet until, by judicial proof and recognition, it becomes entitled for the future to judicial notice, it is the special law merchant, standing outside the ordinary law of the land. The law of bills of exchange is no more general in its application now, than it ever was; yet it has now ceased to be special, and has become incorporated into the general law. The element of truth involved in the argument now under consideration is no more than this, that the comparative generality of their application is one of the most important matters to be taken into consideration in determining whether judicial notice shall or shall not be granted to rules of law.

§ 12. Common Law.

The term common law is used by English lawyers with unfortunate diversities of meaning. It is one of the contrasted terms in at least three different divisions of the legal system:

1. Common law and statute law.—By the common law is sometimes meant the whole of the law except that which has its origin in statutes or some other form of legislation. It is the unenacted law that is produced by custom or precedent, as opposed to the enacted law made by Parliament or subordinate legislative authorities.

2. Common law and equity.—In another sense common law means the whole of the law (enacted or unenacted) except that portion which was developed and administered exclusively by the old Court of Chancery, and which is distinguished as equity.[[20]] It is in this sense, for example, that we speak of the Court of King’s Bench or Exchequer as being a court of common law.

3. Common law and special law.—In yet a third sense common law is a synonym of what we have already called general law, the ordinary law of the land, as opposed to the various forms of special law, such as local customs, which will not be applied as a matter of course in the administration of justice, but only when specially pleaded and proved.

The expression common law (jus commune) was adopted by English lawyers from the canonists, who used it to denote the general law of the Church as opposed to those divergent usages (consuetudines) which prevailed in different local jurisdictions, and superseded or modified within their own territorial limits the common law of Christendom.[[21]] This canonical usage must have been familiar to the ecclesiastical judges of the English law courts of the twelfth and thirteenth centuries, and was adopted by them. We find the distinction between common law and special law (commune ley and especial ley) well established in the earliest Year Books.[[22]] The common law is the ordinary system administered by the ordinary royal courts, and is contrasted with two other forms of law. It is opposed, in the first place, to that which is not administered in the ordinary royal courts at all, but by special tribunals governed by different systems. Thus we have the common law in the Court of King’s Bench, but the canon law in the Ecclesiastical Courts, the civil law in the Court of Admiralty, and, at a later date, the law which was called equity in the Court of Chancery.

In the second place the common law was contrasted with those various forms of special law which were recognised even in the King’s ordinary courts in derogation of the general law of the land. Thus it is opposed to local custom (la commune ley and le usage del pays);[[23]] to the law merchant (la commune ley and la ley merchaunde);[[24]] to statute law;[[25]] and to conventional law (specialis conventio contra jus commune).[[26]] The opposition of common and statute law is noteworthy. Statute law is conceived originally as special law, derogating from the ordinary law of the King’s courts. It was contra jus commune, just as contracts and local customs and the law merchant were contra jus commune. Such a point of view, indeed, is not logically defensible. A public and general statute does not bear the same relation to the rest of the law as a local or mercantile custom bears to it. Logically or not, however, statutes were classed side by side with the various forms of special law which derogated from the jus commune. Hence the modern usage by which the common law in one of its senses means unwritten or unenacted law, as opposed to all law which has its origin in legislation.

§ 13. Law and Equity.

Until the year 1873 England presented the extremely curious spectacle of two distinct and rival systems of law, administered at the same time by different tribunals. These systems were distinguished as common law and equity, or merely as law and equity (using the term law in a narrow sense as including one only of the two systems). The common law was the older, being coeval with the rise of royal justice in England, and it was administered in the older Courts, namely the King’s Bench, the Court of Common Pleas, and the Exchequer. Equity was the more modern body of legal doctrine, developed and administered by the Chancellor in the Court of Chancery as supplementary to, and corrective of, the older law. To a large extent the two systems were identical and harmonious, for it was a maxim of the Chancery that equity follows the law (Aequitas sequitur legem); that is to say, the rules already established in the older courts were adopted by the Chancellors and incorporated into the system of equity, unless there was some sufficient reason for their rejection or modification. In no small measure, however, law and equity were discordant, applying different rules to the same subject-matter. The same case would be decided in one way, if brought before the Court of King’s Bench, and in another, if adjudged in Chancery. The Judicature Act, 1873, put an end to this anomalous state of things, by the abolition of all portions of the common law which conflicted with equity, and by the consequent fusion of the two systems into a single and self-consistent body of law.

The distinction between law and equity has thus become historical merely, but it has not for that reason ceased to demand attention. It is not only a matter of considerable theoretical interest, but it has so left its mark upon our legal system, that its comprehension is still essential even in the practical study of the law.

1. The term equity possesses at least three distinct though related senses. In the first of these, it is nothing more than a synonym for natural justice. Aequitas is aequalitas—the fair impartial, or equal allotment of good and evil—the virtue which gives to every man his own. This is the popular application of the term, and possesses no special juridical significance.

2. In a second and legal sense equity means natural justice, not simply, but in a special aspect; that is to say, as opposed to the rigour of inflexible rules of law. Aequitas is contrasted with summum jus, or strictum jus, or the rigor juris. For the law lays down general principles, taking of necessity no account of the special circumstances of individual cases in which such generality may work injustice. So also, the law may with defective foresight have omitted to provide at all for the case in hand, and therefore supplies no remedy for the aggrieved suitor. In all such cases in order to avoid injustice, it is needful to go beyond the law, or even contrary to the law, and to administer justice in accordance with the dictates of natural reason. This it is that is meant by administering equity as opposed to law; and so far as any tribunal possesses the power of thus supplementing or rejecting the rules of law in special cases, it is, in this sense of the term, a court of equity, as opposed to a court of law.

The distinction thus indicated was received in the juridical theory both of the Greeks and the Romans. Aristotle defines equity as the correction of the law where it is defective on account of its generality,[[27]] and the definition is constantly repeated by later writers. Elsewhere he says:[[28]] “An arbitrator decides in accordance with equity, a judge in accordance with law: and it was for this purpose that arbitration was introduced, namely, that equity might prevail.” In the writings of Cicero we find frequent reference to the distinction between aequitas and jus. He quotes as already proverbial the saying, Summum jus summa injuria,[[29]] meaning by summum jus the rigour of the law untempered by equity. Numerous indications of the same conception are to be met with in the writings of the Roman jurists.[[30]]

The doctrine passed from Greek and Latin literature into the traditional jurisprudence of the Middle Ages. We may see, for example, a discussion of the matter in the Tractatus de Legibus of Aquinas.[[31]] It was well known, therefore, to the lawyers who laid the foundations of our own legal system, and like other portions of scholastic doctrine, it passed into the English law courts of the thirteenth century. There is good reason for concluding that the King’s courts of that day did not consider themselves so straitly bound by statute, custom, or precedent, as to be incapable upon occasion of doing justice that went beyond the law.[[32]] It was not until later that the common law so hardened into an inflexible and inexpansive system of strictum jus, that aequitas fled from the older courts to the newly established tribunal of the Chancellor.

The Court of Chancery, an offshoot from the King’s Council, was established to administer the equity which the common law had rejected, and of which the common law courts had declared themselves incapable. It provided an appeal from the rigid, narrow, and technical rules of the King’s courts of law, to the conscience and equity of the King himself, speaking by the mouth of his Chancellor. The King was the source and fountain of justice. The administration of justice was part of the royal prerogative, and the exercise of it had been delegated by the King to his servants, the judges. These judges held themselves bound by the inflexible rules established in their courts, but not so the King. A subject might have recourse, therefore, to the natural justice of the King, if distrustful of the legal justice of the King’s courts. Here he could obtain aequitas, if the strictum jus of the law courts was insufficient for his necessities. This equitable jurisdiction of the Crown, after having been exercised for a time by the King’s Council, was subsequently delegated to the Chancellor, who, as exercising it, was deemed to be the keeper of the royal conscience.

3. We have now reached a position from which we can see how the term equity acquired its third and last signification. In this sense, which is peculiar to English nomenclature, it is no longer opposed to law, but is itself a particular kind of law. It is that body of law which is administered in the Court of Chancery, as contrasted with the other and rival system administered in the common law courts. Equity is Chancery law as opposed to the common law. The equity of the Chancery has changed its nature and meaning. It was not originally law at all, but natural justice. The Chancellor, in the first days of his equitable jurisdiction, did not go about to set up and administer a new form of law, standing side by side with that already recognised in the Court of Common Pleas. His purpose was to administer justice without law, and this purpose he in fact fulfilled for many a day. In its origin the jurisdiction of the Chancellor was unfettered by any rules whatever. His duty was to do that “which justice, and reason, and good faith, and good conscience require in the case.”[[33]] And of such requirements he was in each particular case to judge at his own good pleasure. In due time, however, there commenced that process of the encroachment of established principle upon judicial discretion, which marks the growth of all legal systems. By degrees the Chancellor suffered himself to be restricted by rule and precedent in his interpretation and execution of the dictates of the royal conscience. Just in so far as this change proceeded, the system administered in Chancery ceased to be a system of equity in the original sense, and became the same in essence as the common law itself. The final result was the establishment in England of a second system of law, standing over against the older law, in many respects an improvement on it, yet no less than it, a scheme of rigid, technical, predetermined principles. And the law thus developed was called equity, because it was in equity that it had its source.

Closely analogous to this equity-law of the English Chancellor is the jus praetorium of the Roman praetor. The praetor, the supreme judicial magistrate of the Roman republic, had much the same power as the Chancellor of supplying and correcting the deficiencies and errors of the older law by recourse to aequitas. Just as the exercise of this power gave rise in England to a body of Chancery law, standing by the side of the common law, so in Rome a jus praetorium grew up distinct from the older jus civile. “Jus praetorium,” says Papinian,[[34]] “est quod praetores introduxerunt, adjuvandi vel supplendi vel corrigendi juris civilis gratia, propter utilitatem publicam.” The chief distinction between the Roman and the English cases is that at Rome the two systems of law coexisted in the same court, the jus praetorium practically superseding the jus civile so far as inconsistent with it; whereas in England, as we have seen, law and equity were administered by distinct tribunals. Moreover, although the jus praetorium had its source in the aequitas of the praetor, it does not seem that this body of law was ever itself called aequitas. This transference of meaning is peculiar to English usage.[[35]]

CHAPTER III.
OTHER KINDS OF LAW.

§ 14. Law in General—A Rule of Action.

Having considered in the foregoing chapter the nature of civil law exclusively, we now proceed to examine certain other kinds of law which need to be distinguished from this and from each other. In its widest and vaguest sense the term law includes any rule of action: that is to say, any standard or pattern to which actions (whether the acts of rational agents or the operations of nature) are or ought to be conformed. In the words of Hooker,[[36]] “we term any kind of rule or canon whereby actions are framed a law.” So Blackstone says:[[37]] “Law, in its most general and comprehensive sense, signifies a rule of action, and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics or mechanics, as well as the laws of nature and of nations.”

Of law in this sense there are many kinds, and the following are sufficiently important and distinct to deserve separate mention and examination: (1) Physical or Scientific law, (2) Natural or Moral law, (3) Imperative law, (4) Conventional law, (5) Customary law, (6) Practical law, (7) International law, (8) Civil law. Before proceeding to analyse and distinguish these, there are the following introductory observations to be made:—

(1) This list is not based on any logical scheme of division and classification, but is a mere simplex enumeratio of the chief forms of law.

(2) There is nothing to prevent the same rule from belonging to more than one of these classes.

(3) Any discussion as to the rightful claims of any of these classes of rules to be called law—any attempt to distinguish law properly so called from law improperly so called—would seem to be nothing more than a purposeless dispute about words. Our business is to recognise the fact that they are called law, and to distinguish accurately between the different classes of rules that are thus known by the same name.

§ 15. Physical or Scientific Law.

Physical laws or the laws of science are expressions of the uniformities of nature—general principles expressing the regularity and harmony observable in the activities and operations of the universe. It is in this sense that we speak of the law of gravitation, the laws of the tides, or the laws of chemical combination. Even the actions of human beings, so far as they are uniform, are the subject of law of this description: as, for example, when we speak of the laws of political economy, or of Grimm’s law of phonetics. These are rules expressing not what men ought to do, but what they do.

Physical laws are also, and more commonly, called natural laws, or the laws of nature; but these latter terms are ambiguous, for they signify also the moral law; that is to say the principles of natural right and wrong.

This use of the term law to connote nothing more than uniformity of action is derived from law in the sense of an imperative rule of action, by way of the theological conception of the universe as governed in all its operations (animate and inanimate, rational and irrational) by the will and command of God. The primary source of this conception is to be found in the Hebrew scriptures, and its secondary and immediate source in the scholasticism of the Middle Ages—a system of thought which was formed by a combination of the theology of the Hebrews with the philosophy of the Greeks. The Bible constantly speaks of the Deity as governing the universe, animate and inanimate, just as a ruler governs a society of men; and the order of the world is conceived as due to the obedience of all created things to the will and commands of their Creator. “He gave to the sea his decree, that the waters should not pass his commandment.”[[38]] “He made a decree for the rain, and a way for the lightning of the thunder.”[[39]] The schoolmen made this same conception one of the first principles of their philosophic system. The lex aeterna, according to St. Thomas Aquinas, is the ordinance of the divine wisdom, by which all things in heaven and earth are governed. “There is a certain eternal law, to wit, reason, existing in the mind of God and governing the whole universe.... For law is nothing else than the dictate of the practical reason in the ruler who governs a perfect community.”[[40]] “Just as the reason of the divine wisdom, inasmuch as by it all things were created, has the nature of a type or idea; so also, inasmuch as by this reason all things are directed to their proper ends, it may be said to have the nature of an eternal law.... And accordingly the law eternal is nothing else than the reason of the divine wisdom regarded as regulative and directive of all actions and motions.”[[41]]

This lex aeterna was divided by the schoolmen into two parts. One of these is that which governs the actions of men: this is the moral law, the law of nature, or of reason. The other is that which governs the actions of all other created things: this is that which we now term physical law, or natural law in the modern and prevalent sense of that ambiguous term.[[42]] This latter branch of the eternal law is perfectly and uniformly obeyed; for the irrational agents on which it is imposed can do no otherwise than obey the dictates of the divine will. But the former branch—the moral law of reason—is obeyed only partially and imperfectly; for man by reason of his prerogative of freedom may turn aside from that will to follow his own desires. Physical law, therefore, is an expression of actions as they actually are; moral law, or the law of reason, is an expression of actions as they ought to be.

This scholastic theory of law finds eloquent expression in the writings of Hooker in the sixteenth century. “His commanding those things to be which are, and to be in such sort as they are, to keep that tenure and course which they do, importeth the establishment of nature’s law.... Since the time that God did first proclaim the edicts of his law upon it, heaven and earth have hearkened unto his voice, and their labour hath been to do his will.... See we not plainly that the obedience of creatures unto the law of nature is the stay of the whole world.”[[43]] “Of law there can be no less acknowledged, than that her seat is the bosom of God, her voice the harmony of the world, all things in heaven and earth do her homage.”[[44]]

The modern use of the term law, in the sense of physical or natural law, to indicate the uniformities of nature, is directly derived from this scholastic theory of the lex aeterna; but the theological conception of divine legislation on which it was originally based is now eliminated or disregarded. The relation between the physical law of inanimate nature and the moral or civil laws by which men are ruled has been reduced accordingly to one of remote analogy.

§ 16. Natural or Moral Law.

By natural or moral law is meant the principles of natural right and wrong—the principles of natural justice, if we use the term justice in its widest sense to include all forms of rightful action. Right or justice is of two kinds, distinguished as natural and positive. Natural justice is justice as it is in deed and in truth—in its perfect idea. Positive justice is justice as it is conceived, recognised, and expressed, more or less incompletely and inaccurately, by the civil or some other form of human and positive law. Just as positive law, therefore, is the expression of positive justice, so philosophers have recognised a natural law, which is the expression of natural justice.

This distinction between natural and positive justice, together with the corresponding and derivative distinction between natural and positive law, comes to us from Greek philosophy. Natural justice is φυσικὸν δίκαιον; positive justice is νομικὸν δίκαιον; and the natural law which expresses the principles of natural justice is φυσικὸς νόμος. When Greek philosophy passed from Athens to Rome, φυσικὸν δίκαιον appeared there as justitia naturalis and φυσικὸς νόμος as lex naturae or jus naturale.

This natural law was conceived by the Greeks as a body of imperative rules imposed upon mankind by Nature, the personified universe. The Stoics, more particularly, thought of Nature or the Universe as a living organism, of which the material world was the body, and of which the Deity or the Universal Reason was the pervading, animating, and governing soul; and natural law was the rule of conduct laid down by this Universal Reason for the direction of mankind.

Natural law has received many other names expressive of its divers qualities and aspects. It is Divine Law (jus divinum)—the command of God imposed upon men—this aspect of it being recognised in the pantheism of the Stoics, and coming into the forefront of the conception, so soon as natural law obtained a place in the philosophical system of Christian writers. Natural law is also the Law of Reason, as being established by that Reason by which the world is governed, and also as being addressed to and perceived by the rational nature of man. It is also the Unwritten Law (jus non scriptum), as being written not on brazen tablets or on pillars of stone, but solely by the finger of nature in the hearts of men. It is also the Universal or Common Law (κοινος νόμος, jus commune, jus gentium), as being of universal validity, the same in all places and binding on all peoples, and not one thing at Athens and another at Rome, as are the civil laws of states (ἴδιος νόμος, jus civile). It is also the Eternal Law (lex aeterna), as having existed from the commencement of the world, uncreated and immutable. Lastly, in modern times we find it termed the Moral Law, as being the expression of the principles of morality.

The term natural law, in the sense with which we are here concerned, is now fallen almost wholly out of use. We speak of the principles of natural justice, or of the rules of natural morality, but seldom of the law of nature, and for this departure from the established usage of ancient and medieval speech there are at least two reasons. The first is that the term natural law has become equivocal; for it is now used to signify physical law—the expression of the uniformities of nature. The second is that the term law, as applied to the principles of natural justice, brings with it certain misleading associations—suggestions of command, imposition, external authority, legislation—which are not in harmony with the moral philosophy of the present day.

The following quotations illustrate sufficiently the ancient and medieval conceptions of the law of nature:—

Aristotle.—“Law is either universal (κοινος νόμος) or special (ἴδιος νόμος). Special law consists of the written enactments by which men are governed. The universal law consists of those unwritten rules which are recognised among all men.”[[45]] “Right and wrong have been defined by reference to two kinds of law.... Special law is that which is established by each people for itself.... The universal law is that which is conformable merely to Nature.”[[46]]

Cicero.—“There is indeed a true law (lex), right reason, agreeing with nature, diffused among all men, unchanging, everlasting.... It is not allowable to alter this law, nor to derogate from it, nor can it be repealed. We cannot be released from this law, either by the praetor or by the people, nor is any person required to explain or interpret it. Nor is it one law at Rome and another at Athens, one law to-day and another hereafter; but the same law, everlasting and unchangeable, will bind all nations at all times; and there will be one common lord and ruler of all, even God the framer and proposer of this law.”[[47]]

Philo Judaeus.—“The unerring law is right reason; not an ordinance made by this or that mortal, a corruptible and perishable law, a lifeless law written on lifeless parchment, or engraved on lifeless columns; but one imperishable, and impressed by immortal Nature on the immortal mind.”[[48]]

Gaius.—“All peoples that are ruled by laws and customs observe partly law peculiar to themselves and partly law common to all mankind. That which any people has established for itself is called jus civile, as being law peculiar to that state (jus proprium civitatis). But that law which natural reason establishes among all mankind is observed equally by all peoples, and is for that reason called jus gentium.”[[49]]

Justinian.—“Natural law (jura naturalia), which is observed equally in all nations, being established by divine providence, remains for ever settled and immutable; but that law which each state has established for itself is often changed, either by legislation or by the tacit consent of the people.”[[50]]

Hooker.—“The law of reason or human nature is that which men by discourse of natural reason have rightly found out themselves to be all for ever bound unto in their actions.”[[51]]

Christian Thomasius.—“Natural law is a divine law, written in the hearts of all men, obliging them to do those things which are necessarily consonant to the rational nature of mankind, and to refrain from those things which are repugnant to it.”[[52]]

The Jus Gentium of the Roman Lawyers.

It is a commonly received opinion, that jus gentium, although identified as early as the time of Cicero with the jus naturale of the Greeks, was in its origin and primary signification something quite distinct—a product not of Greek philosophy but of Roman law. It is alleged that jus gentium meant originally that system of civil and positive law which was administered in Rome to aliens (peregrini), as opposed to the system which was the exclusive birthright and privilege of Roman citizens (jus civile or jus quiritium); that this jus gentium, being later in date than the jus civile, was so much more reasonable and perfect that it came to be identified with the law of reason itself, the jus naturale of the Greeks, and so acquired a double meaning, (1) jus gentium, viz. jus naturale, and (2) jus gentium, viz. that part of the positive law of Rome which was applicable to aliens, and not merely to citizens. That the term jus gentium did possess this double meaning cannot be doubted; but it may be gravely doubted whether the true explanation of the fact is that which has just been set forth. It would seem more probable that jus gentium was in its very origin synonymous with jus naturale—a philosophical or ethical, and not a technical legal term—the Roman equivalent of the κοινος νόμος of Aristotle and the Greeks; and that the technical significance of the term is secondary and derivative. Jus gentium came to mean not only the law of nature—the principles of natural justice—but also a particular part of the positive law of Rome, namely, that part which was derived from and in harmony with those principles of natural justice, and which therefore was applicable in Roman law courts to all men equally, whether cives or peregrini. In the same way in England, the term equity, although originally purely ethical and the mere equivalent of natural justice or jus naturae, acquired a secondary, derivative, and technical use to signify a particular portion of the civil law of England, namely, that portion which was administered in the Court of Chancery, and which was called equity because derived from equity in the original ethical sense.

This, however, is not the place in which to enter into any detailed examination of this very interesting and difficult problem in the history of human ideas.[[53]]

§ 17. Imperative Law.

Imperative law means any rule of action imposed upon men by some authority which enforces obedience to it. In other words an imperative law is a command which prescribes some general course of action, and which is imposed and enforced by superior power. The instrument of such enforcement—the sanction of the law—is not necessarily physical force, but may consist in any other form of constraint or compulsion by which the actions of men may be determined. Lex, says Pufendorf,[[54]] est decretum quo superior sibi subjectum obligat, ut ad istius praescriptum actiones suas componat. “A law,” says Austin,[[55]] “is a command which obliges a person or persons to a course of conduct.”

Laws of this kind are to be classified by reference to the authority from which they proceed. They are in the first place either divine or human. Divine laws consist of the commands imposed by God upon man and enforced by threats of punishment in this world or in the next: for example, the Ten Commandments.[[56]] Human laws consist of imperative rules imposed by men upon men, and they are of three chief kinds, namely, civil law, the law of positive morality, and the law of nations. Civil law consists (in part at least, and in one of its aspects) of commands issued by the state to its subjects, and enforced by its physical power. Positive morality—the law of opinion or of reputation, as Locke[[57]] calls it—consists of the rules imposed by society upon its members and enforced by public censure or disapprobation. The law of nations or international law consists (in part at least, and in one aspect) of rules imposed upon states by the society of states, and enforced partly by international opinion and partly by the threat of war.

Many writers are content to classify the civil law as being, essentially and throughout its whole compass, nothing more than a particular form of imperative law. They consider that it is a sufficient analysis and definition of civil law, to say that it consists of the commands issued by the state to its subjects, and enforced, if necessary, by the physical power of the state. This may be termed the imperative or more accurately the purely imperative theory of the civil law. “The civil laws,” says Hobbes,[[58]] “are the command of him, who is endued with supreme power in the city” (that is, the state, civitas) “concerning the future actions of his subjects.” Similar opinions are expressed by Bentham[[59]] and Austin,[[60]] and have in consequence been widely, though by no means universally, accepted by English writers.

This imperative theory, though it falls short of an adequate analysis, does undoubtedly express a very important aspect of the truth. It rightly emphasises the central fact that law is based on physical force. For law exists only as an incident of the administration of justice by the state, and this consists essentially in the imperative and coercive action of the state in imposing its will, by force if need be, upon the members of the body politic. “It is men and arms,” says Hobbes,[[61]] “that make the force and power of the laws.” Law has its sole source, not in custom, not in consent, not in the spirit of the people, as some would have us believe, but in the will and the power of him, who in a commonwealth beareth not the sword in vain.

This, then, may be accepted as the central truth contained in the imperative theory of law, and if this is so there is no weight to be attributed to that which may be termed the historical argument against this theory. It is objected by some, that though the definition of law as the command of the state is plausible, and at first sight sufficient, as applied to the developed political societies of modern times, it is quite inapplicable to more primitive communities. Early law, it is said, is not the command of the state; it has its source in custom, religion, opinion, not in any authority vested in a political superior; it is not till a comparatively late stage of social evolution that law assumes its modern form, and is recognised as a product of supreme power; law, therefore, is prior to, and independent of political authority and enforcement; it is enforced by the state, because it is already law, not vice versa.[[62]]

To this argument the advocates of the imperative theory can give a valid reply. If there are any rules prior to, and independent of the state, they may greatly resemble law; they may be the primeval substitutes for law; they may be the historical source from which law is developed and proceeds; but they are not themselves law. There may have been a time in the far past, when a man was not distinguishable from an anthropoid ape, but that is no reason for now defining a man in such wise as to include an ape. To trace two different things to a common origin in the beginnings of their historical evolution is not to disprove the existence or the importance of an essential difference between them as they now stand. This is to confuse all boundary lines, to substitute the history of the past for the logic of the present, and to render all distinction and definition vain. The historical point of view is valuable as a supplement to the logical and analytical, but not as a substitute for it. It must be borne in mind that in the beginning the whole earth was without form and void, and that science is concerned not with chaos but with cosmos.

The plausibility of the historical argument proceeds from the failure adequately to comprehend the distinction, hereafter to be noticed by us, between the formal and the material sources of law. Its formal source is that from which it obtains the nature and force of law. This is essentially and exclusively the power and will of the state. Its material sources, on the other hand, are those from which it derives its material contents. Custom and religion may be the material sources of a legal system no less than that express declaration of new legal principles by the state, which we term legislation. In early times, indeed, legislation may be unknown. No rule of law may as yet have been formulated in any declaration of the state. It may not yet have occurred to any man, that such a process as legislation is possible, and no ruler may ever yet have made a law. Custom and religion may be all-powerful and exclusive. Nevertheless if any rule of conduct has already put on the true nature, form, and essence of the civil law, it is because it has already at its back the power of the organised commonwealth for the maintenance and enforcement of it.

Yet although the imperative theory contains this element of the truth, it is not the whole truth. It is one-sided and inadequate—the product of an incomplete analysis of juridical conceptions. In the first place it is defective inasmuch as it disregards that ethical element which is an essential constituent of the complete conception. As to any special relation between law and justice, this theory is silent and ignorant. It eliminates from the implication of the term law all elements save that of force. This is an illegitimate simplification, for the complete idea contains at least one other element which is equally essential and permanent. This is right or justice. If rules of law are from one point of view commands issued by the state to its subjects, from another standpoint they appear as the principles of right and wrong so far as recognised and enforced by the state in the exercise of its essential function of administering justice. Law is not right alone, or might alone, but the perfect union of the two. It is justice speaking to men by the voice of the state. The established law, indeed, may be far from corresponding accurately with the true rule of right, nor is its legal validity in any way affected by any such imperfection. Nevertheless in idea law and justice are coincident. It is for the expression and realisation of justice that the law has been created, and like every other work of men’s hands, it must be defined by reference to its end and purpose. A purely imperative theory, therefore, is as one-sided as a purely ethical or non-imperative theory would be. It mistakes a part of the connotation of the term defined for the whole of it.

We should be sufficiently reminded of this ethical element by the usages of popular speech. The terms law and justice are familiar associates. Courts of law are also courts of justice, and the administration of justice is also the enforcement of law. Right, wrong, and duty are leading terms of law, as well as of morals. If we turn from our own to foreign languages, we find that law and right are usually called by the very same name. Jus, droit, recht, diritto, have all a double meaning; they are all ethical, as well as juridical; they all include the rules of justice, as well as those of law. Are these facts, then, of no significance? Are we to look on them as nothing more than accidental and meaningless coincidences of speech? It is this that the advocates of the theory in question would have us believe. We may, on the contrary, assume with confidence that these relations between the names of things are but the outward manifestation of very real and intimate relations between the things named. A theory which regards the law as the command of the state and nothing more, and which entirely ignores the aspect of law as a public declaration of the principles of justice, would lose all its plausibility, if expressed in a language in which the term for law signifies justice also.

Even if we incorporate the missing ethical element in the definition—even if we define the law as the sum of the principles of justice recognised and enforced by the state—even if we say with Blackstone[[63]] that law is “a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong”—we shall not reach the whole truth. For although the idea of command or enforcement is an essential implication of the law, in the sense that there can be no law where there is no coercive administration of justice by the state, it is not true that every legal principle assumes, or can be made to assume, the form of a command. Although the imperative rules of right and wrong, as recognised by the state, constitute a part, and indeed the most important part of the law, they do not constitute the whole of it. The law includes the whole of the principles accepted and applied in the administration of justice, whether they are imperative principles or not. The only legal rules which conform to the imperative definition are those which create legal obligations, and no legal system consists exclusively of rules of this description. All well-developed bodies of law contain innumerable principles which have some other purpose and content than this, and so fall outside the scope of the imperative definition. These non-imperative legal principles are of various kinds. There are, for example, permissive rules of law, namely those which declare certain acts not to be obligatory, or not to be wrongful; a rule, for instance, declaring that witchcraft or heresy is no crime, or that damage done by competition in trade is no cause of action. It cannot be denied that these are rules of law, as that term is ordinarily used, and it is plain that they fall within the definition of the law as the principles acted on by courts of justice. But in what sense are they enforced by the state? They are not commands, but permissions; they create liberties, not obligations. So also the innumerable rules of judicial procedure are largely non-imperative. They are in no proper sense rules of conduct enforced by the state. Let us take for example the principles that hearsay is no evidence, that written evidence is superior to verbal, that a contract for the sale of land cannot be proved except by writing, that judicial notice will be taken of such and such facts, that matters once decided are decided once for all as between the same parties, that the interpretation of written documents is the office of the judge and not of the jury, that witnesses must be examined on oath or affirmation, that the verdict of a jury must be unanimous. Is it not plain that all these are in their true nature rules in accordance with which judges administer justice to the exclusion of their personal judgment, and not rules of action appointed by the state for observance by its subjects, and enforced by legal sanctions?

There are various other forms of non-imperative law, notably those which relate to the existence, application, and interpretation of other rules. The illustrations already given, however, should be sufficient to render evident the fact that the purely imperative theory not merely neglects an essential element in the idea of law, but also falls far short of the full application or denotation of the term. All legal principles are not commands of the state, and those which are such commands, are at the same time and in their essential nature something more, of which the imperative theory takes no account.

Some writers have endeavoured to evade the foregoing objection by regarding rules of procedure and all other non-imperative principles as being in reality commands addressed, not to the ordinary subjects of the state, but to the judges. The rule, they say, that murder is a crime, is a command addressed to all persons not to commit murder; and the rule that the punishment of murder is hanging, is a command to the judges to inflict that punishment.[[64]] With respect to this contention, it is to be observed in the first place, that no delegation of its judicial functions by the supreme authority of the state is essential. There is no reason of necessity, why a despotic monarch or even a supreme legislature should not personally exercise judicial functions. In such a case the rules of procedure could not be enforced upon the judicature, yet it could scarcely be contended that they would for that reason cease to be true rules of law. And in the second place, even when the judicial functions of the state are delegated to subordinate judges, it is in no way necessary that they should be amenable to the law for the due performance of their duties. Are the rules of evidence, for example, entitled to the name of law, only because of the fact, if fact it be, that the judges who administer them may be legally punished for their disregard of them? It is surely sufficiently obvious that the legal character of all such rules is a consequence of the fact that they are actually observed in the administration of justice, not of the fact, if it is a fact, that the judicature is bound by legal sanctions to observe them.

§ 18. Conventional Law.

By conventional law is meant any rule or system of rules agreed upon by persons for the regulation of their conduct towards each other. Agreement is a law for the parties to it. Examples are the rules and regulations of a club or other society, and the laws of whist, cricket, or any other game. What are the laws of whist, except the rules which the players expressly or tacitly agree to observe in their conduct of the game?

In many cases conventional law is also civil law; for the rules which persons by mutual agreement lay down for themselves are often enforced by the state. But whether or not these conventional rules thus receive recognition and enforcement as part of the law of the land, they constitute law in the wide sense of a rule of human action.[[65]]

The most important branch of conventional law is the law of nations, which, as we shall see later, consists essentially of the rules which have been agreed upon by states, as governing their conduct and relations to each other.

§ 19. Customary Law.

By customary law is here meant any rule of action which is actually observed by men—any rule which is the expression of some actual uniformity of voluntary action. Custom is a law for those who observe it—a law or rule which they have set for themselves, and to which they voluntarily conform their actions. It is true that custom is very often obligatory; that is to say, it is very often enforced by some form of imperative law, whether the civil law or the law of positive morality; but, irrespective of any such enforcement, and by reason solely of its de facto observance, it is itself a law in that wide sense in which law means a rule of action.[[66]]

Some writers regard international law as a form of customary law. They define it as consisting of the rules actually observed by states in their conduct towards each other. We shall consider this opinion in a later section of the present chapter. Civil law, as we have defined it, is a form of customary law, inasmuch as it consists of the rules actually observed by the state in the administration of justice. It is the custom of the judicature. The relation between popular custom and the civil law is an important matter which will be considered in a later chapter. It is sufficient here to make the following remarks with regard to it:—

(1) Popular custom has not in itself the nature of civil law; for the essence of civil law lies in its recognition by the state in the administration of justice.

(2) Popular custom is one of the primitive substitutes for civil law, men being governed by custom before the state has been established or has undertaken the function of making and administering law.

(3) Popular custom is one of the sources of the civil law; for that law, when it comes into existence, is largely modelled on the pre-existing customs of the community. Civil law, which is the custom of the state, is based to a large extent on that precedent customary law which is merely the custom of the society.

§ 20. Practical Law.

Yet another kind of law is that which consists of rules for the attainment of some practical end, and which, for want of a better name, we may term practical law. These laws are the rules which guide us to the fulfilment of our purposes; which inform us as to what we ought to do, or must do, in order to attain a certain end.[[67]] Examples of such are the laws of health, the laws of musical and poetical composition, the laws of style, the laws of architecture, the rules for the efficient conduct of any art or business. The laws of a game, such as whist, are of two kinds: some are conventional, being the rules agreed upon by the players; others are practical, being the rules for the successful playing of the game.

§ 21. International Law.

International law or the law of nations consists of those rules which govern sovereign states in their relations and conduct towards each other. All men agree that such a body of law exists, and that states do in fact act in obedience to it; but when we come to inquire what is the essential nature and source of this law, we find in the writings of those who deal with it a very curious absence of definiteness and unanimity. The opinion which we shall here adopt as correct is that the law of nations is essentially a species of conventional law—that it has its source in international agreement—that it consists of the rules which sovereign states have agreed to observe in their dealings with each other.

This law has been defined by Lord Russell of Killowen[[68]] as “the aggregate of the rules to which nations have agreed to conform in their conduct towards one another.” “The law of nations,” says Lord Chief Justice Coleridge,[[69]] “is that collection of usages which civilised states have agreed to observe in their dealings with each other.” “The authorities seem to me,” says Lord Esher,[[70]] “to make it clear that the consent of nations is requisite to make any proposition part of the law of nations.” “To be binding,” says Lord Cockburn,[[71]] “the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from established usage.”

The international agreement which thus makes international law is of two kinds, being either express or implied. Express agreement is contained in treaties and international conventions, such as the Declaration of Paris or the Convention of the Hague. Implied agreement is evidenced chiefly by the custom or practice of states. By observing certain rules of conduct in the past, states have impliedly agreed to abide by them in the future; by claiming the observance of such customs from other states, they have impliedly agreed to be bound by them themselves. International law derived from express agreement is called in a narrow sense the conventional law of nations, although in a wider sense the whole of that law is conventional; that part which is based on implied agreement is called the customary law of nations. The tendency of historical development is for the whole body of the law to be reduced to the first of these two forms—to be codified and expressed in the form of an international convention, to which all civilised states have given their express consent. Just as customary civil law tends to be absorbed in enacted law, so customary international law tends to be merged in treaty law.

International law is further divisible into two kinds, which may be distinguished as the common law of nations and the particular law of nations. The common law is that which prevails universally or at least generally among all civilised states, being based on their unanimous or general agreement, express or implied. The particular law is that which is in force solely between two or more states, by virtue of an agreement made between them alone, and derogating from the common law.

International law exists only between those states which have expressly or impliedly agreed to observe it. Those states (which now include all civilised communities and some which are as yet only imperfectly civilised) are said to constitute the family or society of nations—an international society governed by the law of nations, just as each national society is governed by its own civil law. New states are received into this society by mutual agreement, and thereby obtain the rights and become subject to the duties created and imposed by international law.

Writers are, however, as we have already indicated, far from being unanimous in their analysis of the essential nature of the law of nations, and the various competing theories may be classified as follows:—

(1) That the law of nations is, or at least includes, a branch of natural law, namely, the rules of natural justice as applicable to the relations of states inter se.

(2) That it is a kind of customary law, namely the rules actually observed by states in their relations to each other.

(3) That it is a kind of imperative law, namely the rules enforced upon states by international opinion or by the threat or fear of war.

(4) That it is a kind of conventional law, as already explained. Having accepted the last of these theories as correct, let us shortly consider the nature and claims of the three others.

§ 22. The Law of Nations as Natural Law.

All writers on international law may be divided into three classes by reference to their opinions as to the relation between this law and the principles of natural justice. The first class consists of those who hold that the law of nations is wholly included within the law of nature—that it consists merely of the principles of natural justice so far as applicable to sovereign states in their relations and conduct towards each other—that the study of international law is simply a branch of moral philosophy—and that there is no such thing as a positive law of nations, consisting of a body of artificial rules established by states themselves. Thus Hobbes says:[[72]] “As for the law of nations, it is the same with the law of nature. For that which is the law of nature between man and man, before the constitution of commonwealth, is the law of nations between sovereign and sovereign after.” The same opinion is expressed by Christian Thomasius,[[73]] Pufendorf,[[74]] Burlamaqui,[[75]] and others, but is now generally discredited, though it is not destitute of support even yet.

A second opinion is that international law is both natural and positive—that it is divisible into two parts, distinguished as the natural law of nations, which consists of the rules of natural justice as between states, and the positive law of nations, consisting of rules established by states by agreement, custom, or in some other manner, for the government of their conduct towards each other. The natural law of nations is supplementary or subsidiary to the positive law, being applicable only when no positive rule has been established on the point. Representatives of this opinion are Grotius, Wolf, Vattel, Blackstone, Halleck, Wheaton, Phillimore, Fiore, Twiss, and others. The third opinion is that international law is wholly positive—that it consists exclusively of a set of rules actually established in some way by the action of sovereign states themselves—and that the rules of natural justice are not in themselves rules of international law at all, but pertain to that law only if, and only so far as, they have been actually incorporated into the established system of positive law. This is now the prevalent opinion, and we have here accepted it as the correct one.[[76]] By those who maintain it the rules of natural justice as between states are called international morality, and are distinguished by this name from international law. These two bodies of rules are partly coincident and partly discordant. The conduct of a state may be a breach of international morality but not of international law, or a breach of law though in accordance with morality, or it may be both immoral and illegal.

The question whether rules of natural justice are to be included as a part of international law is, indeed, in one aspect, a mere question of words. For these rules exist, and states are in honour bound by them, and the question is merely as to the name to be given to them. Nevertheless, questions of words are often questions of practical importance, and it is of undoubted importance to emphasise by a difference of nomenclature the difference between rules of international morality, by which, indeed, states are bound whether they have agreed to them or not, but which are uncertain and subject to endless dispute, and those rules of international law, which by means of international agreement have been defined and established and removed from the sphere of the discussions and insoluble doubts of moral casuistry.

§ 23. The Law of Nations as Customary Law.

Even those writers who agree in the opinion that international law is or at least includes a system of positive law, differ among themselves as to the essential nature and source of these rules; and we proceed to consider the various answers that have been given to this question. Some writers consider that international law has its source in international custom—that it consists essentially and exclusively of the rules which are actually observed by sovereign states in their dealings with one another.[[77]] This view, however, is not prevalent, and is, it is believed, unsound. International custom is not in itself international law; it is nothing more than one kind of evidence of the international agreement in which all such law has its source. There are many customs which, because they are based on no such underlying agreement, have not the force of law, states being at liberty to depart from them when they please. Conversely there is much law which is not based on custom at all, but on express international conventions. These conventions, if observed, will of course create a custom in conformity with the law; but they constitute law themselves from the time of their first making, and do not wait to become law until they have been embodied in actual practice. New rules of warfare established by convention in time of peace are law already in time of peace.

§ 24. The Law of Nations as Imperative Law.

By some writers international law is regarded as a form of imperative law; it consists, they say, of rules enforced upon states by the general opinion of the society of states, and also in extreme cases by war waged against the offender by the state injured or by its allies. Thus Austin says:[[78]] “Laws or rules of this species, which are imposed upon nations or sovereigns by opinions current among nations, are usually styled the law of nations or international law.” In considering this view it is to be admitted that in many cases the rules of the law of nations are thus sanctioned and enforced by international opinion and force. But the question to be answered is whether this sanction is of the essence of the matter; because, if it is so, all rules so sanctioned must be, and no others can be, rules of international law. It is clear, however, that the sanction of war cannot be the essential test; for in the first place this sanction is but seldom applied even to undoubted violations of international law, and in the second place it is at least as often resorted to when there is no violation of such law at all. What then shall be said of the alternative sanction of international opinion? Is this the test and essence of a rule of international law? For the following reasons it is submitted that it is not:—

(1) Many forms of state action are censured by public opinion, which are admittedly no violation of the law of nations. A state may act within its legal rights, and yet so oppressively or unjustly as to excite the adverse opinion of other nations.

(2) There may be violations of international law which are in the particular circumstances regarded as excusable, and approved by international opinion.

(3) Public opinion is variable from day to day—dependent on the special circumstances of the individual case—not uniform as we pass from state to state—not uniform even throughout the population of the same state. International law, on the other hand, is a permanent, uniform system of settled rules, independent of the fickle breath of public approbation or censure—made and unmade by the express or implied agreements of sovereign governments, and not by the mere opinions and prejudices which for the moment are in public favour. International law is one thing, international positive morality is another thing; but the doctrine here criticised identifies and confounds them as one. International law is made, as has been said, by the acts and contracts of governments; international opinion is made chiefly by journalists and the writers of books. Opinion, if sufficiently uniform and sufficiently permanent, will doubtless in time constrain the law into conformity with it; but it is not the same thing.

(4) Public opinion cannot be made the basis of any rational or scientific body of rules or legal doctrines. For such opinion is simply the belief of the public that certain forms of conduct are in conformity with natural justice. So far as this belief is well founded, the law based upon it is simply the law of nature; so far as it is erroneous, the law based on it is simply a mistake which disappears ipso facto on being recognised as such. It is impossible to recognise as a subject of scientific interpretation and investigation any international law based on erroneous public opinion; and if based on true opinion, it is nothing save the principles of natural justice.

Certain writers seek to avoid the first of these objections by so defining international law as to include only one portion of the body of rules approved and sanctioned by international opinion, the remaining portion constituting international positive morality. According to this opinion international law consists of those rules which international opinion not merely approves, but also regards as rightly enforceable by way of war. International positive morality, on the other hand, consists of those rules of which opinion approves, but of the enforcement of which by way of war it would not approve. That is to say, international law is distinguished from international morality by an application of the distinction familiar to the older moralists between duties of perfect and duties of imperfect obligation.[[79]]

This view would seem to be exposed to all the objections already made to the cruder theory which we have just considered, with the exception of the first; and it is also exposed to this further criticism, that it is impossible thus to divide public opinion sharply into two parts by reference to the justification of war or any other kind of forcible compulsion. Whether such compulsion is right is a matter to be determined not by the application of any fixed or predetermined rules, but by a consideration of all the circumstances of the individual instance; and even then opinion will in most cases be hopelessly discordant. Moreover, there are forms of state action which are not the violation of any established rule of international law, and which nevertheless are so contrary to the rightful interests of another state that they would be held to be rightly prevented or redressed by way of war. Conversely there are rules of undoubted law which are of such minor importance, that a war for the vindication of them would be viewed by international opinion as a folly and a crime.

CHAPTER IV.
THE ADMINISTRATION OF JUSTICE

§ 25. Necessity of the Administration of Justice.

“A herd of wolves,” it has been said,[[80]] “is quieter and more at one than so many men, unless they all had one reason in them, or have one power over them.” Unfortunately they have not one reason in them, each being moved by his own interests and passions; therefore the other alternative is the sole resource. For the cynical emphasis with which he insists upon this truth, the name and reputation of the philosopher Hobbes have suffered much. Yet his doctrine, however hyperbolically expressed, is true in substance. Man is by nature a fighting animal, and force is the ultima ratio, not of kings alone, but of all mankind. Without “a common power to keep them all in awe,” it is impossible for men to cohere in any but the most primitive forms of society. Without it, civilisation is unattainable, injustice is unchecked and triumphant, and the life of man is, as the author of Leviathan tells us, “solitary, poor, nasty, brutish, and short.”[[81]] However orderly a society may be, and to whatever extent men may appear to obey the law of reason rather than that of force, and to be bound together by the bonds of sympathy rather than by those of physical constraint, the element of force is none the less present and operative. It has become partly or wholly latent, but it still exists. A society in which the power of the state is never called into actual exercise marks not the disappearance of governmental control, but the final triumph and supremacy of it.

It has been thought and said by men of optimistic temper, that force as an instrument for the coercion of mankind is merely a temporary and provisional incident in the development of a perfect civilisation. We may well believe, indeed, that with the progress of civilisation we shall see the gradual cessation of the actual exercise of force, whether by way of the administration of justice or by way of war. To a large extent already, in all orderly societies, this element in the administration of justice has become merely latent; it is now for the most part sufficient for the state to declare the rights and duties of its subjects, without going beyond declaration to enforcement. In like manner the future may see a similar destiny overtake that international litigation which now so often proceeds to the extremity of war. The overwhelming power of the state or of the international society of states may be such as to render its mere existence a sufficient substitute for its exercise. But this, as already said, would be the perfection, not the disappearance, of the rule of force. The administration of justice by the state must be regarded as a permanent and essential element of civilisation, and as a device that admits of no substitute. Men being what they are, their conflicting interests, real or apparent, draw them in diverse ways; and their passions prompt them to the maintenance of these interests by all methods possible, notably by that method of private force to which the public force is the only adequate reply.

The constraint of public opinion is a valuable and indeed indispensable supplement to that of law, but an entirely insufficient substitute for it. The relation between these two is one of mutual dependence. If the administration of justice requires for its efficiency the support of a healthy national conscience, that conscience is in its turn equally dependent on the protection of the law and the public force. A coercive system based on public opinion alone, no less than one based on force alone, contains within itself elements of weakness that would be speedily fatal to efficiency and permanence. The influence of the public censure is least felt by those who need it most. The law of force is appointed, as all law should be, not for the just, but for the unjust; while the law of opinion is set rather for the former than for the latter, and may be defied with a large measure of impunity by determined evildoers. The rewards of successful iniquity are upon occasion very great; so much so that any law which would prevail against it, must have sterner sanctions at its back than any known to the public censure. It is also to be observed that the influence of the national conscience, unsupported by that of the national force, would be counteracted in any but the smallest and most homogeneous societies by the internal growth of smaller societies or associations possessing separate interests and separate antagonistic consciences of their own. It is certain that a man cares more for the opinion of his friends and immediate associates, than for that of all the world besides. The censure of ten thousand may be outweighed by the approval of ten. The honour of thieves finds its sanction and support in a law of professional opinion, which is opposed to, and prevails over that of national opinion. The social sanction, therefore, is an efficient instrument only so far as it is associated with, and supplemented by the concentrated and irresistible force of the incorporate community. Men being what they are—each keen to see his own interest and passionate to follow it—society can exist only under the shelter of the state, and the law and justice of the state is a permanent and necessary condition of peace, order, and civilisation.

§ 26. Origin of the Administration of Justice.

The administration of justice is the modern and civilised substitute for the primitive practices of private vengeance and violent self-help. In the beginning a man redressed his wrongs and avenged himself upon his enemies by his own hand, aided, if need be, by the hands of his friends and kinsmen; but at the present day he is defended by the sword of the state. For the expression of this and other elements involved in the establishment of political government, we may make use of the contrast, familiar to the philosophy of the seventeenth and eighteenth centuries, between the civil state and the state of nature. This state of nature is now commonly rejected as one of the fictions which nourished in the era of the social contract, but such treatment is needlessly severe. The term certainly became associated with much false or exaggerated doctrine touching the golden age on the one hand and the bellum omnium contra omnes of Hobbes on the other, but in itself it nevertheless affords a convenient mode for the expression of an undoubted truth. As long as there have been men, there has probably been some form of human society. The state of nature, therefore, is not the absence of society, but the absence of a society so organised on the basis of physical force, as to constitute a state. Though human society is coeval with mankind, the rise of political society, properly so called, is an event in human history.

One of the most important elements, then, in the transition from the natural to the civil state is the substitution of the force of the incorporate community for the force of individuals, as the instrument of the redress and punishment of injuries. Private vengeance is transmuted into the administration of criminal justice; while civil justice takes the place of violent self-help. As Locke says,[[82]] in the state of nature the law of nature is alone in force, and every man is in his own case charged with the execution of it. In the civil state, on the other hand, the law of nature is supplemented by the civil law, and the maintenance of the latter by the force of the organised community renders unnecessary and impermissible the maintenance of the former by the forces of private men. The evils of the earlier system were too great and obvious to escape recognition even in the most primitive communities. Every man was constituted by it a judge in his own cause, and might was made the sole measure of right. Nevertheless the substitution was effected only with difficulty and by slow degrees. The turbulent spirits of early society did not readily abandon the liberty of fighting out their quarrels, or submit with good grace to the arbitrament of the tribunals of the state. There is much evidence that the administration of justice was in the earlier stages of its development merely a choice of peaceable arbitration, offered for the voluntary acceptance of the parties, rather than a compulsory substitute for self-help and private war. Only later, with the gradual growth of the power of government, did the state venture to suppress with the strong hand the ancient and barbarous system, and to lay down the peremptory principle that all quarrels shall be brought for settlement to the courts of law.

All early codes show us traces of the hesitating and gradual method in which the voice and force of the state became the exclusive instruments of the declaration and enforcement of justice. Trial by battle, which endured in the law of England until the beginning of the nineteenth century,[[83]] is doubtless a relic of the days when fighting was the approved method of settling a dispute, and the right and power of the state went merely to the regulation, not to the suppression, of this right and duty of every man to help and guard himself by his own hand. In later theory, indeed, this mode of trial was classed with the ordeal as judicium Dei—the judgment of Heaven as to the merits of the case, made manifest by the victory of the right. But this explanation was an afterthought; it was applied to public war, as the litigation of nations, no less than to the judicial duel, and it is not the root of either practice. Among the laws of the Saxon kings we find no absolute prohibition of private vengeance, but merely its regulation and restriction.[[84]] In due measure and in fitting manner it was the right of every man to do for himself that which in modern times is done for him by the state. As royal justice grows in strength, however, the law begins to speak in another tone, and we see the establishment of the modern theory of the exclusive administration of justice by the tribunals of the state.[[85]]

§ 27. Civil and Criminal Justice.

The administration of justice has been already defined as the maintenance of right within a political community by means of the physical force of the state. It is the application by the state of the sanction of force to the rule of right. We have now to notice that it is divisible into two parts, which are distinguished as the administration of civil and that of criminal justice. In applying the sanction of physical force to the rules of right, the tribunals of the state may act in one or other of two different ways. They may either enforce rights, or punish wrongs. In other words, they may either compel a man to perform the duty which he owes, or they may punish him for having failed to perform it. Hence the distinction between civil and criminal justice. The former consists in the enforcement of rights, the latter in the punishment of wrongs. In a civil proceeding the plaintiff claims a right, and the court secures it for him by putting pressure upon the defendant to that end; as when one claims a debt that is due to him, or the restoration of property wrongfully detained from him, or damages payable to him by way of compensation for wrongful harm, or the prevention of a threatened injury by way of injunction. In a criminal proceeding, on the other hand, the prosecutor claims no right, but accuses the defendant of a wrong. He is not a claimant, but an accuser. The court makes no attempt to constrain the defendant to perform any duty, or to respect any right. It visits him, instead, with a penalty for the duty already disregarded and for the right already violated; as where he is hanged for murder, or imprisoned for theft.

Both in civil and in criminal proceedings there is a wrong (actual or threatened) complained of. For the law will not enforce a right except as against a person who has already violated it, or who has at the least already shown an intention of doing so. Justice is administered only against wrongdoers, in act or in intent. Yet the complaint is of an essentially different character in civil and in criminal cases. In civil justice it amounts to a claim of right; in criminal justice it amounts merely to an accusation of wrong. Civil justice is concerned primarily with the plaintiff and his rights; criminal justice with the defendant and his offences. The former gives to the plaintiff, the latter to the defendant, that which he deserves.

A wrong regarded as the subject-matter of civil proceedings is called a civil wrong; one regarded as the subject-matter of criminal proceedings is termed a criminal wrong or a crime. The position of a person who has, by actual or threatened wrongdoing, exposed himself to legal proceedings, is termed liability or responsibility, and it is either civil or criminal according to the nature of the proceedings to which the wrongdoer is exposed.

The same act may be both a civil injury and a crime, both forms of legal remedy being available. Reason demands that in general these two remedies shall be concurrent, and not merely alternative. If possible, the law should not only compel men to perform their disregarded duties, but should by means of punishment guard against the repetition of such wrongdoing in the future. The thief should not only be compelled to restore his plunder, but should also be imprisoned for having taken it, lest he and others steal again. To this duplication of remedies, however, there are numerous exceptions. Punishment is the sole resource in cases where enforcement is from the nature of things impossible, and enforcement is the sole remedy in those cases in which it is itself a sufficient precautionary measure for the future. Not to speak of the defendant’s liability for the costs of the proceedings, the civil remedy of enforcement very commonly contains, as we shall see later, a penal element which is sufficient to render unnecessary or unjustifiable any cumulative criminal responsibility.

We have defined a criminal proceeding as one designed for the punishment of a wrong done by the defendant, and a civil proceeding as one designed for the enforcement of a right vested in the plaintiff. We have now to consider a very different explanation which has been widely accepted. By many persons the distinction between crimes and civil injuries is identified with that between public and private wrongs. By a public wrong is meant an offence committed against the state or the community at large, and dealt with in a proceeding to which the state is itself a party. A private wrong is one committed against a private person, and dealt with at the suit of the individual so injured. The thief is criminally prosecuted by the Crown, but the trespasser is civilly sued by him whose right he has violated. Criminal libel, it is said, is a public wrong, and is dealt with as such at the suit of the Crown; civil libel is a private wrong and is dealt with accordingly by way of an action for damages by the person libelled. Blackstone’s statement of this view may be taken as representative: “Wrongs,” he says,[[86]] “are divisible into two sorts or species, private wrongs and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals, and are thereupon frequently termed civil injuries; the latter are a breach and violation of public rights and duties which affect the whole community considered as a community; and are distinguished by the harsher appellation of crimes and misdemeanours.”[[87]]

But this explanation is insufficient. In the first place all public wrongs are not crimes. A refusal to pay taxes is an offence against the state, and is dealt with at the suit of the state; but it is a civil wrong for all that, just as a refusal to repay money lent by a private person is a civil wrong. The breach of a contract made with the state is no more a criminal offence than is the breach of a contract made with a subject. An action by the state for the recovery of a debt, or for damages, or for the restoration of public property, or for the enforcement of a public trust, is purely civil, although in each case the person injured and suing is the state itself.

Conversely, and in the second place, all crimes are not public wrongs. Most of the very numerous offences that are now punishable on summary conviction may be prosecuted at the suit of a private person; yet the proceedings are undoubtedly criminal none the less.

We must conclude, therefore, that the divisions between public and private wrongs and between crimes and civil injuries are not coincident but cross divisions. Public rights are often enforced, and private wrongs are often punished. The distinction between criminal and civil wrongs is based not on any difference in the nature of the right infringed, but on a difference in the nature of the remedy applied.

The plausibility of the theory in question is chiefly attributable to a certain peculiarity in the historical development of the administration of justice. Where the criminal remedy of punishment is left in the hands of the individuals injured, to be claimed or not as they think fit, it invariably tends to degenerate into the civil remedy of pecuniary compensation. Men barter their barren rights of vengeance for the more substantial solatium of coin of the realm. Offenders find no difficulty in buying off the vengeance of those they have offended, and a system of money payments by way of composition takes the place of a system of true punishments. Hence it is, that in primitive codes true criminal law is almost unknown. Its place is taken by that portion of civil law which is concerned with pecuniary redress. Murder, theft, and violence are not crimes to be punished by loss of life, limb, or liberty, but civil injuries to be paid for. This is a well-recognised characteristic of the early law both of Rome and England. In the Jewish law we notice an attempt to check this process of substitution, and to maintain the law of homicide, at least, as truly criminal. “Ye shall take no satisfaction for the life of a murderer, which is guilty of death: but he shall be surely put to death.”[[88]] Such attempts, however, will be for the most part vain, until the state takes upon itself the office of prosecutor, and until offences worthy of punishment cease to be matters between private persons, and become matters between the wrongdoer and the community at large. Only when the criminal has to answer for his deed to the state itself, will true criminal law be successfully established and maintained. Thus at Rome the more important forms of criminal justice pertained to the sovereign assemblies of the people, while civil justice was done in the courts of the praetor and other magistrates. So in England indictable crimes are in legal theory offences against “the peace of our Lord the King, his crown and dignity,” and it was only under the rule of royal justice that true criminal law was superadded to the more primitive system of pecuniary compensation. Even at the present day, for the protection of the law of crime, it is necessary to prohibit as itself a crime the compounding of a felony, and to prevent in courts of summary jurisdiction the settlement of criminal proceedings by the parties without the leave of the court itself. Such is the historical justification of the doctrine which identifies the distinction between civil injuries and crimes with that between public and private wrongs. The considerations already adduced should be sufficient to satisfy us that the justification is inadequate.

§ 28. The Purposes of Criminal Justice; Deterrent Punishment.

The ends of criminal justice are four in number, and in respect of the purposes so served by it, punishment may be distinguished as (1) Deterrent, (2) Preventive, (3) Reformative, and (4) Retributive. Of these aspects the first is the essential and all-important one, the others being merely accessory. Punishment is before all things deterrent, and the chief end of the law of crime is to make the evildoer an example and a warning to all that are like-minded with him. Offences are committed by reason of a conflict between the interests, real or apparent, of the wrongdoer and those of society at large. Punishment prevents offences by destroying this conflict of interests to which they owe their origin—by making all deeds which are injurious to others injurious also to the doers of them—by making every offence, in the words of Locke, “an ill bargain to the offender.” Men do injustice because they have no sufficient motive to seek justice, which is the good of others rather than that of the doer of it. The purpose of the criminal law is to supply by art the motives which are thus wanting in the nature of things.

§ 29. Preventive Punishment.

Punishment is in the second place preventive or disabling. Its primary and general purpose being to deter by fear, its secondary and special purpose is, wherever possible and expedient, to prevent a repetition of wrongdoing by the disablement of the offender. We hang murderers not merely that we may put into the hearts of others like them the fear of a like fate, but for the same reason for which we kill snakes, namely, because it is better for us that they should be out of the world than in it. A similar secondary purpose exists in such penalties as imprisonment, exile, and forfeiture of office.

§ 30. Reformative Punishment.

Punishment is in the third place reformative. Offences are committed through the influence of motives upon character, and may be prevented either by a change of motives or by a change of character. Punishment as deterrent acts in the former method; punishment as reformative in the latter. This curative or medicinal function is practically limited to a particular species of penalty, namely, imprisonment, and even in this case pertains to the ideal rather than to the actual. It would seem, however, that this aspect of the criminal law is destined to increasing prominence. The new science of criminal anthropology would fain identify crime with disease, and would willingly deliver the criminal out of the hands of the men of law into those of the men of medicine. The feud between the two professions touching the question of insanity threatens to extend itself throughout the whole domain of crime.

It is plain that there is a necessary conflict between the deterrent and the reformative theories of punishment, and that the system of criminal justice will vary in important respects according as the former or the latter principle prevails in it. The purely reformative theory admits only such forms of punishment as are subservient to the education and discipline of the criminal, and rejects all those which are profitable only as deterrent or disabling. Death is in this view no fitting penalty; we must cure our criminals, not kill them. Flogging and other corporal inflictions are condemned as relics of barbarism by the advocates of the new doctrine; such penalties are said to be degrading and brutalizing both to those who suffer and to those who inflict them, and so fail in the central purpose of criminal justice. Imprisonment, indeed, as already indicated, is the only important instrument available for the purpose of a purely reformative system. Even this, however, to be fitted for such a purpose, requires alleviation to a degree quite inadmissible in the alternative system. If criminals are sent to prison in order to be there transformed into good citizens by physical, intellectual, and moral training, prisons must be turned into dwelling-places far too comfortable to serve as any effectual deterrent to those classes from which criminals are chiefly drawn. A further illustration of the divergence between the deterrent and the reformative theories is supplied by the case of incorrigible offenders. The most sanguine advocate of the curative treatment of criminals must admit that there are in the world men who are incurably bad, men who by some vice of nature are even in their youth beyond the reach of reformative influences, and with whom crime is not so much a bad habit as an ineradicable instinct. What shall be done with these? The only logical inference from the reformative theory is that they should be abandoned in despair as no fit subjects for penal discipline. The deterrent and disabling theories, on the other hand, regard such offenders as being pre-eminently those with whom the criminal law is called upon to deal. That they may be precluded from further mischief, and at the same time serve as a warning to others, they are justly deprived of their liberty, and in extreme cases of life itself.

The application of the purely reformative theory, therefore, would lead to astonishing and inadmissible results. The perfect system of criminal justice is based on neither the reformative nor the deterrent principle exclusively, but is the result of a compromise between them. In this compromise it is the deterrent principle which possesses predominant influence, and its advocates who have the last word. This is the primary and essential end of punishment, and all others are merely secondary and accidental. The present tendency to attribute exaggerated importance to the reformative element is a reaction against the former tendency to neglect it altogether, and like most reactions it falls into the falsehood of extremes. It is an important truth, unduly neglected in times past, that to a very large extent criminals are not normal and healthy human beings, and that crime is in great measure the product of physical and mental abnormality and degeneracy. It has been too much the practice to deal with offenders on the assumption that they are ordinary types of humanity. Too much attention has been paid to the crime, and too little to the criminal. Yet we must be careful not to fall into the opposite extreme. If crime has become the monopoly of the abnormal and the degenerate or even the mentally unsound, the fact must be ascribed to the selective influence of a system of criminal justice based on a sterner principle than that of reformation. The more efficient the coercive action of the state becomes, the more successful it is in restraining all normal human beings from the dangerous paths of crime, and the higher becomes the proportion of degeneracy among those who break the law. Even with our present imperfect methods the proportion of insane persons among murderers is very high; but if the state could succeed in making it impossible to commit murder in a sound mind without being indubitably hanged for it afterwards, murder would become, with scarcely an exception, limited to the insane.

If, after this consummation had been reached, the opinion were advanced that inasmuch as all murderers are insane, murder is not a crime which needs to be suppressed by the strong arm of the penal law, and pertains to the sphere of medicine rather than to that of jurisprudence, the fallacy of the argument would be obvious. Were the state to act on any such principle, the proposition that all murderers are insane would very rapidly cease to be true. The same fallacy, though in a less obvious form, is present in the more general argument that, since the proportion of disease and degeneracy among criminals is so great, the reformative function of punishment should prevail over, and in a great measure exclude, its deterrent and coercive functions. For it is chiefly through the permanent influence and operation of these latter functions, partly direct in producing a fear of evildoing, partly indirect in establishing and maintaining those moral habits and sentiments which are possible only under the shelter of coercive law, that crime has become limited, in such measure as it has, to the degenerate, the abnormal, and the insane. Given an efficient penal system, crime is too poor a bargain to commend itself, save in exceptional circumstances, to any except those who lack the self-control, the intelligence, the prudence, or the moral sentiments of the normal man. But apart from criminal law in its sterner aspects, and apart from that positive morality which is largely the product of it, crime is a profitable industry, which will flourish exceedingly, and be by no means left as a monopoly to the feebler and less efficient members of society.

Although the general substitution of the reformative for the deterrent principle would lead to disaster, it may be argued that the substitution is possible and desirable in the special case of the abnormal and degenerate. Purely reformative treatment is now limited to the insane and the very young; should it not be extended to include all those who fall into crime through their failure to attain to the standard of normal humanity? No such scheme, however, seems practicable. In the first place, it is not possible to draw any sharp line of distinction between the normal and the degenerate human being. It is difficult enough in the only case of degeneracy now recognised by the law, namely insanity; but the difficulty would be a thousand-fold increased had we to take account of every lapse from the average type. The law is necessarily a rough and ready instrument, and men must be content in general to be judged and dealt with by it on the basis of their common humanity, and not on that of their special idiosyncrasies. In the second place, even in the case of those who are distinctly abnormal, it does not appear, except in the special instance of mental unsoundness, that the purely deterrent influences of punishment are not effective and urgently required. If a man is destitute of the affections and social instincts of humanity, the judgment of common sense upon him is not that he should be treated more leniently than the normal evildoer—not that society should cherish him in the hope of making him a good citizen—but that by the rigour of penal discipline his fate should be made a terror and a warning to himself and others. And in this matter sound science approves the judgment of common sense. Even in the case of the abnormal it is easier and more profitable to prevent crime by the fear of punishment than to procure by reformative treatment the repentance and amendment of the criminal.

It is needful, then, in view of modern theories and tendencies, to insist on the primary importance of the deterrent element in criminal justice. The reformative element must not be overlooked, but neither must it be allowed to assume undue prominence. To what extent it may be permitted in particular instances to overrule the requirements of a strictly deterrent theory is a question of time, place, and circumstance. In the case of youthful criminals the chances of effective reformation are greater than in that of adults, and the rightful importance of the reformative principle is therefore greater also. In orderly and law-abiding communities concessions may be safely made in the interests of reformation, which in more turbulent societies would be fatal to the public welfare.

§ 31. Retributive Punishment.

We have considered criminal justice in three of its aspects—namely as deterrent, disabling, and reformative—and we have now to deal with it under its fourth and last aspect as retributive. Retributive punishment, in the only sense in which it is admissible in any rational system of administering justice, is that which serves for the satisfaction of that emotion of retributive indignation which in all healthy communities is stirred up by injustice. It gratifies the instinct of revenge or retaliation, which exists not merely in the individual wronged, but also by way of sympathetic extension in the society at large. Although the system of private revenge has been suppressed, the emotions and instincts that lay at the root of it are still extant in human nature, and it is a distinct though subordinate function of criminal justice to afford them their legitimate satisfaction. For although in their lawless and unregulated exercise and expression they are full of evil, there is in them none the less an element of good. The emotion of retributive indignation, both in its self-regarding and its sympathetic forms, is even yet the mainspring of the criminal law. It is to the fact that the punishment of the wrongdoer is at the same time the vengeance of the wronged, that the administration of justice owes a great part of its strength and effectiveness. Did we punish criminals merely from an intellectual appreciation of the expediency of so doing, and not because their crimes arouse in us the emotion of anger and the instinct of retribution, the criminal law would be but a feeble instrument. Indignation against injustice is, moreover, one of the chief constituents of the moral sense of the community, and positive morality is no less dependent on it than is the law itself. It is good, therefore, that such instincts and emotions should be encouraged and strengthened by their satisfaction; and in civilised societies this satisfaction is possible in any adequate degree only through the criminal justice of the state. There can be little question that at the present day the sentiment of retributive indignation is deficient rather than excessive, and requires stimulation rather than restraint. Unquestionable as have been the benefits of that growth of altruistic sentiment which characterises modern society, it cannot be denied that in some respects it has taken a perverted course and has interfered unduly with the sterner virtues. A morbid sentimentality has made of the criminal an object of sympathetic interest rather than of healthy indignation, and Cain occupies in our regards a place that is better deserved by Abel. We have too much forgotten that the mental attitude which best becomes us, when fitting justice is done upon the evildoer, is not pity, but solemn exultation.[[89]]

The foregoing explanation of retributive punishment as essentially an instrument of vindictive satisfaction is by no means that which receives universal acceptance. It is a very widely held opinion that retribution is in itself, apart altogether from any deterrent or reformative influences exercised by it, a right and reasonable thing, and the just reward of iniquity. According to this view, it is right and proper, without regard to ulterior consequences, that evil should be returned for evil, and that as a man deals with others so should he himself be dealt with. An eye for an eye and a tooth for a tooth is deemed a plain and self-sufficient rule of natural justice. Punishment as so regarded is no longer a mere instrument for the attainment of the public welfare, but has become an end in itself. The purpose of vindictive satisfaction has been eliminated without any substitute having been provided. Those who accept this view commonly advance retribution to the first place among the various aspects of punishment, the others being relegated to subordinate positions.

This conception of retributive justice still retains a prominent place in popular thought. It flourishes also in the writings of theologians and of those imbued with theological modes of thought, and even among the philosophers it does not lack advocates. Kant, for example, expresses the opinion that punishment cannot rightly be inflicted for the sake of any benefit to be derived from it either by the criminal himself or by society, and that the sole and sufficient reason and justification of it lies in the fact that evil has been done by him who suffers it.[[90]] Consistently with this view, he derives the measure of punishment, not from any elaborate considerations as to the amount needed for the repression of crime, but from the simple principle of the lex talionis: “Thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot.”[[91]] No such principle, indeed, is capable of literal interpretation; but subject to metaphorical and symbolical applications it is in Kant’s view the guiding rule of the ideal scheme of criminal justice.

It is scarcely needful to observe that from the utilitarian point of view hitherto taken up by us such a conception of retributive punishment is totally inadmissible. Punishment is in itself an evil, and can be justified only as the means of attaining a greater good. Retribution is in itself not a remedy for the mischief of the offence, but an aggravation of it. The opposite opinion may be regarded as a product of the incomplete transmutation of the conception of revenge into that of punishment. It results from a failure to appreciate the rational basis of the instinct of retribution—a failure to refer the emotion of retributive indignation to the true source of its rational justification—so that retaliation is deemed an end in itself, and is regarded as the essential element in the conception of penal justice.

A more definite form of the idea of purely retributive punishment is that of expiation. In this view, crime is done away with, cancelled, blotted out, or expiated, by the suffering of its appointed penalty. To suffer punishment is to pay a debt due to the law that has been violated. Guilt plus punishment is equal to innocence. “The wrong,” it has been said,[[92]] “whereby he has transgressed the law of right, has incurred a debt. Justice requires that the debt be paid, that the wrong be expiated.... This is the first object of punishment—to make satisfaction to outraged law.” This conception, like the preceding, marks a stage in the transformation of revenge into criminal justice. Until this transformation is complete, the remedy of punishment is more or less assimilated to that of redress. Revenge is the right of the injured person. The penalty of wrongdoing is a debt which the offender owes to his victim, and when the punishment has been endured the debt is paid, the liability is extinguished, innocence is substituted for guilt, and the vinculum juris forged by crime is dissolved. The object of true redress is to restore the position demanded by the rule of right, to substitute justice for injustice, to compel the wrongdoer to restore to the injured person that which is his own. A like purpose is assigned to punishment, so long as it is imperfectly differentiated from that retributive vengeance which is in some sort a reparation for wrongdoing. The fact that in the expiatory theory satisfaction is conceived as due rather to the outraged majesty of the law, than to the victim of the offence, merely marks a further stage in the refinement and purification of the primitive conception.

§ 32. Civil Justice; Primary and Sanctioning Rights.

We proceed now to the consideration of civil justice and to the analysis of the various forms assumed by it. It consists, as we have seen, in the enforcement of rights, as opposed to the punishment of wrongs. The first distinction to be noticed is that the right so enforced is either a Primary or a Sanctioning right. A sanctioning right is one which arises out of the violation of another right. All others are primary; they are rights which have some other source than wrongs. Thus my right not to be libelled or assaulted is primary; but my right to obtain pecuniary compensation from one who has libelled or assaulted me is sanctioning. My right to the fulfilment of a contract made with me is primary; but my right to damages for its breach is sanctioning.

The administration of civil justice, therefore, falls into two parts, according as the right enforced belongs to the one or the other of these two classes. Sometimes it is impossible for the law to enforce the primary right; sometimes it is possible but not expedient. If by negligence I destroy another man’s property, his right to this property is necessarily extinct and no longer enforceable. The law, therefore, gives him in substitution for it a new and sanctioning right to receive from me the pecuniary value of the property that he has lost. If on the other hand I break a promise of marriage, it is still possible, but it is certainly not expedient, that the law should specifically enforce the right, and compel me to enter into that marriage; and it enforces instead a sanctioning right of pecuniary satisfaction. A sanctioning right almost invariably consists of a claim to receive money from the wrongdoer, and we shall here disregard any other forms, as being quite exceptional.

The enforcement of a primary right may be conveniently termed specific enforcement. For the enforcement of a sanctioning right there is no very suitable generic term, but we may venture to call it sanctional enforcement.

Examples of specific enforcement are proceedings whereby a defendant is compelled to pay a debt, to perform a contract, to restore land or chattels wrongfully taken or detained, to refrain from committing or continuing a trespass or nuisance, or to repay money received by mistake or obtained by fraud. In all these cases the right enforced is the primary right itself, not a substituted sanctioning right. What the law does is to insist on the specific establishment or re-establishment of the actual state of things required by the rule of right, not of another state of things which may be regarded as its equivalent or substitute.

Sanctioning rights may be divided into two kinds by reference to the purpose of the law in creating them. This purpose is either (1) the imposition of a pecuniary penalty upon the defendant for the wrong which he has committed, or (2) the provision of pecuniary compensation for the plaintiff in respect of the damage which he has suffered from the defendant’s wrongdoing. Sanctioning rights, therefore, are either (1) rights to exact and receive a pecuniary penalty, or (2) rights to exact and receive damages or other pecuniary compensation.

The first of these kinds is rare in modern English law, though it was at one time of considerable importance both in our own and in other legal systems. But it is sometimes the case even yet, that the law creates and enforces a sanctioning right which has in it no element of compensation to the person injured, but is appointed solely as a punishment for the wrongdoer. For example, a statute may make provision for a pecuniary penalty payable to a common informer, that is to say, to any one who shall first sue the offender for it. Such an action is called a penal action, as being brought for the recovery of a penalty. But it is none the less a purely civil, and in no respect a criminal proceeding. Primarily and immediately, it is an action for the enforcement of a right, not for the punishment of a wrong. It pertains, therefore, to the civil administration of justice, no less than an ordinary action for the recovery of a debt. The mere fact that the sanctioning right thus enforced is created by the law for the purpose of punishment does not bring the action within the sphere of criminal justice. In order that a proceeding should be criminal it is necessary that its direct and immediate purpose should be punishment; it is not enough that its purpose should be the enforcement of a right which has been created by way of punishment. A proceeding is civil if it is one for the enforcement of a right, and the source, nature, and purpose of the right so enforced are irrelevant.[[93]]

The second form of sanctioning right—the right to pecuniary compensation or damages—is in modern law by far the more important. It may be stated as a general rule, that the violation of a private right gives rise, in him whose right it is, to a sanctioning right to receive compensation for the injury so done to him. Such compensation must itself be divided into two kinds, which may be distinguished as Restitution and Penal Redress. In respect of the person injured, indeed, these two are the same in their nature and operation; but in respect of the wrongdoer they are very different. In restitution the defendant is compelled to give up the pecuniary value of some benefit which he has wrongfully obtained at the expense of the plaintiff; as when he who has wrongfully taken or detained another’s goods is made to pay him the pecuniary value of them, or when he who has wrongfully enriched himself at another’s expense is compelled to account to him for all money so obtained.

Penal redress, on the other hand, is a much more common and important form of legal remedy than mere restitution. The law is seldom content to deal with a wrongdoer by merely compelling him to restore all benefits which he has derived from his wrong; it commonly goes further, and compels him to pay the amount of the plaintiff’s loss; and this may far exceed the profit, if any, which he has himself received. It is clear that compensation of this kind has a double aspect and nature; from the point of view of the plaintiff it is compensation and nothing more, but from that of the defendant it is a penalty imposed upon him for his wrongdoing. The compensation of the plaintiff is in such cases the instrument which the law uses for the punishment of the defendant, and because of this double aspect we call it penal redress. Thus if I burn down my neighbour’s house by negligence, I must pay him the value of it. The wrong is then undone with respect to him, indeed, for he is put in as good a position as if it had not been committed. Formerly he had a house, and now he has the worth of it. But the wrong is not undone with respect to me, for I am the poorer by the value of the house, and to this extent I have been punished for my negligence.

§ 33. A Table of Legal Remedies.

The result of the foregoing analysis of the various forms assumed by the administration of justice, civil and criminal, may be exhibited in a tabular form as follows:—

Legal Proceedings Civil—Enforcement of rights Specific Enforcement—enforcement of a primary right: e.g., payment of debt, or return of property detained. I.
Sanctional Enforcement—enforcement of a sanctioning right Compensation Restitution—return of profit unlawfully made. II.
Penal Redress— payment for loss unlawfully inflicted. III.
Penalty: e.g., action by informer for statutory
Criminal—Punishment of wrongs: e.g., imprisonment for theft. V.

§ 34. Penal and Remedial Proceedings.

It will be noticed that in the foregoing Table legal proceedings have been divided into five distinct classes, namely: (1) actions for specific enforcement, (2) actions for restitution, (3) actions for penal redress, (4) penal actions, and (5) criminal prosecutions. It must now be observed that the last three of these contain a common element which is absent from the others, namely the idea of punishment. In all these three forms of procedure the ultimate purpose of the law is in whole or in part the punishment of the defendant. This is equally so, whether he is imprisoned, or compelled to pay a pecuniary penalty to a common informer, or is held liable in damages to the person injured by him. All these proceedings, therefore, may be classed together as penal, and as the sources of penal liability. The other forms, namely specific enforcement and restitution, contain no such penal element; the idea of punishment is entirely foreign to them; and they may be classed together as remedial, and as the sources of remedial liability. From the point of view of legal theory this distinction between penal and remedial liability is, as we shall see, of even greater importance than that between criminal and civil liability. It will be noted that all criminal proceedings are at the same time penal, but that the converse is not true, some civil proceedings being penal while others are merely remedial.

It may be objected that this explanation fails to distinguish between penal liability and criminal, inasmuch as punishment is stated to be the essential element in each. The answer to this objection is that we must distinguish between the ulterior and the immediate purposes of the law. Proceedings are classed as criminal or civil in respect of their immediate aim; they are distinguished as penal or remedial in respect of their entire purpose, remote as well as immediate. One way of punishing a wrongdoer is to impose some new obligation upon him, and to enforce the fulfilment of it. He may be compelled to pay a penalty or damages. Whenever this course is adopted, the immediate design of the law is the enforcement of the right to the penalty or damages, but its ulterior design is the punishment of the wrong out of which this right arose. In respect of the former the proceedings are civil, not criminal; while in respect of the latter they are penal, not remedial. Penal proceedings, therefore, may be defined as those in which the object of the law, immediate or ulterior, is or includes the punishment of the defendant. All others are remedial, the purpose of the law being nothing more than the enforcement of the plaintiff’s right, and the idea of punishment being irrelevant and inapplicable.

§ 35. Secondary Functions of Courts of Law.

Hitherto we have confined our attention to the administration of justice in the narrowest and most proper sense of the term. In this sense it means, as we have seen, the application by the state of the sanction of physical force to the rules of justice. It is the forcible defence of rights and suppression of wrongs. The administration of justice properly so called, therefore, involves in every case two parties, the plaintiff and the defendant, a right claimed or a wrong complained of by the former as against the latter, a judgment in favour of the one or the other, and execution of this judgment by the power of the state if need be. We have now to notice that the administration of justice in a wider sense includes all the functions of courts of justice, whether they conform to the foregoing type or not. It is to administer justice in the strict sense that the tribunals of the state are established, and it is by reference to this essential purpose that they must be defined. But when once established, they are found to be useful instruments, by virtue of their constitution, procedure, authority, or special knowledge, for the fulfilment of other more or less analogous functions. To these secondary and non-essential activities of the courts, no less than to their primary and essential functions, the term administration of justice has been extended. They are miscellaneous and indeterminate in character and number, and tend to increase with the advancing complexity of modern civilisation. They fall chiefly into four groups:

(1) Petitions of Right.—The courts of law exercise, in the first place, the function of adjudicating upon claims made by subjects against the state itself. If a subject claims that a debt is due to him from the Crown, or that the Crown has broken a contract with him, or wrongfully detains his property, he is at liberty to take proceedings by way of petition of right in a court of law for the determination of his rights in the matter. The petition is addressed to the Crown itself, but is referred for consideration to the courts of justice, and these courts will investigate the claim in due form of law, and pronounce in favour of the petitioner or of the Crown, just as in an action between two private persons. But this is not the administration of justice properly so called, for the essential element of coercive force is lacking. The state is the judge in its own cause, and cannot exercise constraint against itself. Nevertheless in the wider sense the administration of justice includes the proceedings in a petition of right, no less than a criminal prosecution or an action for debt or damages against a private individual.

(2) Declarations of Right.—The second form of judicial action which does not conform to the essential type is that which results, not in any kind of coercive judgment, but merely in a declaration of right. A litigant may claim the assistance of a court of law, not because his rights have been violated, but because they are uncertain. What he desires may be not any remedy against an adversary for the violation of a right, but an authoritative declaration that the right exists. Such a declaration may be the ground of subsequent proceedings in which the right, having been violated, receives enforcement, but in the meantime there is no enforcement nor any claim to it. Examples of declaratory proceedings are declarations of legitimacy, declarations of nullity of marriage, advice to trustees or executors as to their legal powers and duties, and the authoritative interpretation of wills.

(3) Administrations.—A third form of secondary judicial action includes all those cases in which courts of justice undertake the management and distribution of property. Examples are the administration of a trust, the liquidation of a company by the court, and the realisation and distribution of an insolvent estate.

(4) Titles of Right.—The fourth and last form includes all those cases in which judicial decrees are employed as the means of creating, transferring, or extinguishing rights. Instances are a decree of divorce or judicial separation, an adjudication of bankruptcy, an order of discharge in bankruptcy, a decree of foreclosure against a mortgagor, an order appointing or removing trustees, a grant of letters of administration, and vesting or charging orders. In all these cases the judgment or decree operates not as the remedy of a wrong, but as the title of a right.

These secondary forms of judicial action are to be classed under the head of the civil administration of justice. Here, as in its other uses, the term civil is merely residuary; civil justice is all that is not criminal.

We have defined the law as consisting of the rules observed in the administration of justice. We have now seen that the latter term is used in a double sense, and the question therefore arises whether it is the strict or the wide sense that is to be adopted in our definition of the law. There can be no doubt, however, that logic admits, and convenience requires, the adoption of the wider application. We must recognise as law the sum total of the rules that are applied by courts of justice in the exercise of any of their functions, whether these are primary and essential or secondary and accidental. The principles in accordance with which the courts determine a petition of right, decree a divorce, or grant letters of administration, are as truly legal principles as those which govern an action of debt or a suit for specific performance.